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olumel<br />

DRAFT<br />

CIVIL CODE<br />

1977


THE QUEBEC CIVIL CODE<br />

<strong>Volume</strong> I<br />

DRAFT CIVIL CODE<br />

1977


The English translation of this report<br />

was prepared by the<br />

Service de traduction<br />

Ministere des Communications<br />

Gouvernement du Quebec<br />

TRANSLATION<br />

Elisabeth Cowan<br />

Donald Hughes<br />

Colin Roberts<br />

Rita Daguillard<br />

Margret Ponze Grenier<br />

Lorraine Gaboury Ladouceur<br />

REVISION AND COORDINATION<br />

R. Clive Meredith<br />

Mary Plaice<br />

Design: Gill Plasse<br />

A production of the<br />

Service des publications officielles<br />

by: Michel Marquis<br />

Legal deposit - Second quarter 1978<br />

Bibliotheque nationale du Quebec<br />

ISBN 0-7754-2991-0<br />

Editeur officiel du Quebec<br />

Everett Melby<br />

Eric Oxford<br />

Kelly Ricard<br />

Earl Straus<br />

Elisabeth Thompson<br />

Hal Winter


eport on<br />

THE QUEBEC CIVIL CODE<br />

CIVIL CODE REVISION OFFICE<br />

<strong>Volume</strong> I<br />

DRAFT CIVIL CODE<br />

Editeur officiel<br />

Quebec


TABLE OF CONTENTS Pages<br />

FOREWORD xxiii<br />

BOOK ONE - PERSONS 1<br />

TITLE ONE - JURIDICAL PERSONALITY 3<br />

Chapter I - Enjoyment of civil rights 3<br />

Chapter II- Exercise of civil rights 3<br />

Chapter III - Respect of privacy 4<br />

TITLE TWO - HUMAN PERSONS 7<br />

Chapter I - General provisions 7<br />

Chapter II- Provisions relating to children 9<br />

Chapter III- Name and physical identity 10<br />

Section I- Attribution of name 10<br />

Section II- Change of name 12<br />

Section III- Change of physical identity 13<br />

Section IV - Effects of change of name or of<br />

physical identity 14<br />

Section V- Use and protection of name 14<br />

Chapter IV - Domicile 15<br />

Chapter V- Acts of civil status 16<br />

Section I - General provisions 15<br />

Section II- Acts of birth 19<br />

Section III- Acts of marriage 20<br />

Section IV- Acts of death 21<br />

§- I Attestations and declarations of death 21<br />

§-2 Declaratory judgments of death 22<br />

Section V - Correction and rectification of acts of<br />

civil status 23<br />

Section VI - Judgments to reconstitute and replace<br />

acts of civil status 24


VI<br />

Chapter VI - Majority and minority 24<br />

Section I - Majority 24<br />

Section II - Minority 24<br />

Chapter VII - Protected persons 26<br />

Section I - General provisions 26<br />

Section II - Parents legal tutorship to the property<br />

of their minor children 31<br />

Section III - Dative tutorship 32<br />

Section IV - Testamentary tutorship 33<br />

Section V- Protection of persons of major age 34<br />

§ - 1 Tutorship and curatorship to persons of<br />

major age<br />

§ - 2 Tutorship to sick persons 36<br />

§ - 3 Tutorship to absentees 37<br />

Section VI - Measures of supervision applying to<br />

tutorship 40<br />

TITLE THREE - LEGAL PERSONS 43<br />

Chapter I - General provisions 43<br />

Chapter II - Corporations 48<br />

Chapter III - Legal persons in public law 51<br />

BOOK TWO - THE FAMILY 53<br />

TITLE ONE - MARRIAGE 55<br />

Chapter I - Promises of marriage 55<br />

Chapter II - Conditions required for contracting<br />

marriage 56<br />

Chapter III - Opposition to marriage 57<br />

Chapter IV - The solemnization of marriage 57<br />

Chapter V - Proof of marriage 59<br />

Chapter VI - Nullity of marriage 59<br />

Chapter VII - Effects of marriage 62<br />

Section I- Rights and duties of consorts 62<br />

Section II - The family residence 64<br />

Section III - General provisions 67<br />

Chapter VIII - Matrimonial regimes 67<br />

Section I - General provisions 67<br />

34


Section II- Partnership of acquests 70<br />

§ - 1 Composition of the partnership of acquests 70<br />

§ - 2 Administration of property and liability for<br />

debts 73<br />

§ - 3 Dissolution and liquidation of the regime 74<br />

Section III- Community of property 78<br />

§ - 1 Community of moveables and acquests 78<br />

I - Assets and liabilities of the community<br />

of moveables and acquests 78<br />

II - Administration of the community of<br />

moveables and acquests, and effect of the<br />

acts of consorts 85<br />

III - Dissolution of the community 87<br />

IV - Acceptance of the community 88<br />

V - Partition of the community 90<br />

VI - Renunciation of the community and<br />

its effects 94<br />

§ - 2 Principal clauses that may modify the<br />

community of moveables and acquests 95<br />

I - The community reduced to acquests 95<br />

II - The right to take back free and clear<br />

what was brought into the community 95<br />

III - Clauses by which unequal shares in<br />

the community are assigned to the consorts 95<br />

IV - Community by general title 97<br />

§ - 3 Reserved property 97<br />

Section IV- Separation as to property 98<br />

§ - 1 Conventional separation as to property 98<br />

§ - 2 Judicial separation as to property 99<br />

Chapter IX- Dissolution of marriage 100<br />

Chapter X - Separation as to bed and board, and divorce<br />

Section I - General provision<br />

100<br />

100<br />

Section II - Agreements in cases of de facto<br />

separation 100<br />

Section III - Grounds for separation as to bed and<br />

board and for divorce 101<br />

Section IV - Conciliation 102<br />

Section V - Provisional measures 103<br />

Section VI - Accessory measures 104<br />

VII


VIII<br />

Section VII - Effects of separation as to bed and<br />

board and of divorce 105<br />

TITLE TWO - FILIATION 107<br />

Chapter I- Filiation by blood 107<br />

Section I - Establishment of filiation 107<br />

Section II - Disavowal and contestation of<br />

paternity 108<br />

Section III- Proof of filiation 109<br />

Section IV- Effects of filiation Ill<br />

Chapter II- Adoption 111<br />

Section I - Conditions for adoption Ill<br />

Section II - Placement for adoption and judgments<br />

115<br />

Section III- Effects of adoption 116<br />

Section IV - Confidentiality, offences, and penalties 117<br />

TITLE THREE - THE OBLIGATION OF SUPPORT 119<br />

TITLE FOUR - PARENTAL AUTHORITY 123<br />

BOOK THREE - SUCCESSION 127<br />

TITLE ONE - PROVISIONS COMMON TO EVERY<br />

SUCCESSION 129<br />

Chapter I- General provisions 129<br />

Chapter II- Qualities required to inherit 129<br />

Chapter III- Transmission of succession 131<br />

TITLE TWO - INTESTATE SUCCESSION 133<br />

Chapter I - Devolution of successions 133<br />

Section I- Regular succession 133<br />

Section II - Representation 134<br />

Section III- Order of devolution of succession 135<br />

Section IV- Irregular succession 138<br />

Chapter II- The spouse's reserved share 138<br />

Section I- Attribution of the reserve 138<br />

Section II - Disposable portion and reduction of<br />

gifts and legacies 139


Section III - Imputation of liberalities made to<br />

spouses 142<br />

Chapter III - Continuation of the obligation of support 142<br />

Chapter IV - Acceptance and renunciation of succession 143<br />

Section I - The right of option and the prior right<br />

to take inventory and to deliberate 143<br />

Section II- Pure and simple acceptance 146<br />

Section III - Renunciation 147<br />

Section IV- Acceptance with benefit of inventory 148<br />

Section V- Vacant successions 154<br />

Chapter V- Administration of successions 155<br />

Chapter VI- Undivided ownership among heirs 156<br />

Chapter VII - Liabilities of the succession and separation<br />

of patrimonies 157<br />

Chapter VIII - Partition and return 160<br />

Section I - Partition 160<br />

Section II - Returns 165<br />

- 1 Return of gifts and legacies 165<br />

-2 Return of debts 167<br />

Section III- Effects of partition 168<br />

§ - 1 The declaratory effect of partition 168<br />

§-2 Warranty of copartitioners 170<br />

Section IV- Nullity of partition 171<br />

TITLE THREE - TESTAMENTARY SUCCESSION 173<br />

Chapter I - Wills 173<br />

Section I - General provisions 173<br />

Section II- Forms of wills 175<br />

§ - 1 Authentic wills 175<br />

§-2 Holograph wills 177<br />

§ - 3 Wills made in the presence of witnesses 177<br />

Section III - Probate of wills 178<br />

Section IV- Revocation of wills 179<br />

Chapter II- Testamentary dispositions 180<br />

Section I- Various kinds of legacies 180<br />

Section II - Lapse, resolution and nullity of<br />

legacies 181<br />

Chapter III- The effect of testamentary dispositions 183<br />

Section I- General provisions 183<br />

Section II- Payment of debts and of legacies 184<br />

IX


Chapter IV- Testamentary execution 1°'<br />

Section I - Appointment of executors 187<br />

Section II - Capacity and acceptance of executors 188<br />

Section III- Obligations of executors 189<br />

Section IV- Powers of the executor 190<br />

Chapter V - Substitution 191<br />

Section I - General provisions 191<br />

Section II- Substitution before opening 194<br />

Section III- Substitution after opening 197<br />

BOOK FOUR - PROPERTY 201<br />

TITLE ONE - NATURE AND KINDS OF PROPERTY 203<br />

Chapter I - Moveables and immoveables 203<br />

Chapter II - Things in their relation to those who hold<br />

rights to them or who possess them 204<br />

TITLE TWO - POSSESSION 207<br />

Chapter I - The nature of possession 207<br />

Chapter II- Effects of possession 208<br />

TITLE THREE - THE RIGHT OF OWNERSHIP 209<br />

Chapter I - Nature and scope of the right of ownership 209<br />

Chapter II - Limitations on the right of ownership 210<br />

Section I - Expropriation 210<br />

Section II- Boundaries 211<br />

Section III - Flowing water 211<br />

Section IV- Fences 211<br />

Section V- Common ownership 212<br />

Section VI- The right of view 214<br />

Section VII- The right of way 215<br />

Section VIII - Access to another person's land 216<br />

Chapter III- Acquisition of the right of ownership 216<br />

Section I- Accession of immoveables 217<br />

- 1 Artificial accession 217<br />

- 2 Natural accession 219<br />

Section II - Accession of moveables 220


TITLE FOUR - DISMEMBERMENTS AND<br />

MODIFICATIONS OF THE RIGHT OF<br />

OWNERSHIP 221<br />

Chapter I - Usufruct 221<br />

Section I - General provisions 221<br />

Section II - Rights and obligations of the bare<br />

owner 222<br />

Section III- Rights of the usufructuary 222<br />

Section IV- Obligations of the usufructuary 226<br />

Section V- Extinction of usufruct 231<br />

Chapter II- Use and habitation 233<br />

Chapter III - Real servitudes 234<br />

Section I - General provisions 234<br />

Section II- Establishment of servitudes 235<br />

Section III- Rights and obligations of the dominant<br />

owner 235<br />

Section IV - Rights and obligations of the servient<br />

owner 237<br />

Section V - Extinction of real servitudes 237<br />

Chapter IV - Indivision 238<br />

Section I - General provisions 238<br />

Section II - Particular provisions relating to coownership<br />

of ships 242<br />

Section III - Condominium 242<br />

§ - 1 General provisions 242<br />

§-2 Declaration of condominium 244<br />

§ - 3 Administrators 246<br />

§-4 Meetings of co-owners 248<br />

§-5 Sharing of costs 250<br />

§ - 6 Miscellaneous 251<br />

Chapter V - Emphyteusis 252<br />

Section I - General provisions 252<br />

Section II - Respective rights and obligations of<br />

owner and holder 253<br />

Section III- Termination of emphyteusis 254<br />

Chapter VI- The right of superficies 254<br />

Section I - General provisions 254<br />

Section II - Construction lease 255<br />

TITLE FIVE - SECURITY ON PROPERTY 257<br />

Chapter I - Preliminary provisions 257<br />

XI


XII<br />

Section I - Common pledge of creditors 257<br />

Section II- Presumption of hypothec 258<br />

Section III- Right of retention 259<br />

Section IV - The vendor's right of revendication 259<br />

Chapter II - General provisions 260<br />

Chapter III - Conventional hypothecs 263<br />

Section I - Hypothecs on immoveable property 263<br />

Section II - Hypothecs on moveable property 264<br />

Section III - General hypothecs 266<br />

Section IV - Floating hypothecs 266<br />

Section V - Hypothecs securing payment of<br />

renewable obligations 268<br />

Section VI - Hypothec on debts 268<br />

Section VII- Memorandum of hypothec 270<br />

Chapter IV - Judicial and testamentary hypothecs 274<br />

Section I - Judicial hypothecs 274<br />

Section II - Testamentary hypothecs 275<br />

Chapter V - Publication of hypothecs 276<br />

Section I - General provisions 276<br />

Section II - Publication of hypothecs by<br />

registration 277<br />

Section III - Publication of hypothecs on moveable<br />

property by putting the creditor in<br />

possession 278<br />

Section IV - Publication of hypothecs on debts and<br />

other incorporeal moveable property 280<br />

Section V- Publication of hypothecs on corporeal<br />

things represented by bills of lading 281<br />

Section VI - Publication of hypothecs on shares of<br />

capital stock 283<br />

Chapter VI- Effect of hypothecs 283<br />

Section I - General provisions 283<br />

Section II - Hypothecary creditor in possession of<br />

hypothecated property 284<br />

Chapter VII - Hypothecary recourses 285<br />

Section I - Provisions common to all hypothecary<br />

recourses 285<br />

Section II - Taking possession 288<br />

Section III - Sale other than judicial sale 290<br />

Section IV - Taking in payment 291<br />

Section V- Judicial sale 293


XIII<br />

I Hypothecary action 293<br />

§ 2 Discharge of debtor 293<br />

Section VI - Imperative provisions 295<br />

Chapter VIII- Rank of hypothecs 295<br />

Chapter IX- Extinction of hypothecs 297<br />

TITLE SIX - ADMINISTRATION OF THE PROPERTY OF<br />

OTHERS 301<br />

Chapter I- Modes of administration 301<br />

Section I- Preliminary provisions 301<br />

Section II- Custody of the property of others 302<br />

Section III- Simple administration of the property<br />

of others 302<br />

Section IV - Full administration of the property of<br />

others 304<br />

Chapter II - Rights and obligations of the administrator 304<br />

Chapter III- Investment of the property of others 312<br />

Chapter IV- Responsibility of the administrator 315<br />

Chapter V- Termination of administration 318<br />

Chapter VI- Rendering of accounts 320<br />

TITLE SEVEN - TRUSTS 323<br />

Chapter I - General provisions 323<br />

Chapter II - Trustees 324<br />

Chapter III - Beneficiaries 324<br />

Chapter IV- Administration of trusts 326<br />

Chapter V- Duration of trusts 328<br />

BOOK FIVE - OBLIGATIONS 331<br />

Introductory provisions 333<br />

TITLE ONE - SOURCES OF OBLIGATIONS 333<br />

Chapter I - Obligations arising from contracts and from<br />

unilateral juridical acts 333<br />

General provisions 333<br />

Section I- Formation of contracts 334<br />

General provision 334<br />

- 1 Capacity to contract 334


XIV<br />

- 2 Meeting of minds 334<br />

I - Offer and acceptance 334<br />

II - Qualities of consent 336<br />

-3 Object of the contract 338<br />

-4 Form of the contract 338<br />

Section II- Nullity of contracts 339<br />

General provisions 339<br />

§ - 1 Effects of nullity 339<br />

§ - 2 Confirmation 341<br />

Section III- Interpretation of contracts 341<br />

Section IV - The effect of contracts between parties<br />

and in relation to third parties 342<br />

General provisions 342<br />

§ - 1 Transfer of ownership 343<br />

§ - 2 Fruits and risks attached to things . 343<br />

§ - 3 Simulation 343<br />

§ - 4 Third party obligation 344<br />

§-5 Stipulation in favour of another 344<br />

Chapter II - Obligations arising from the law 345<br />

Section I - Obligations arising from behaviour<br />

towards others 345<br />

Section II- Management of the affairs of another 347<br />

Section III- Recovery of things not due 349<br />

Section IV - Unjustified enrichment 350<br />

TITLE TWO - MODALITIES OF OBLIGATIONS 353<br />

Chapter I- Obligations with a term 353<br />

Chapter II - Conditional obligations 354<br />

Chapter III - Solidary obligations 356<br />

Section I - Solidarity among debtors 356<br />

Section II - Solidarity among creditors 358<br />

Chapter IV - Divisible obligations and indivisible<br />

obligations 359<br />

Chapter V- Alternative obligations 359<br />

Chapter VI- Facultative obligations 360<br />

TITLE THREE - PROTECTION OF THE RIGHTS OF<br />

CREDITORS 361<br />

General provisions 361<br />

Chapter I - Indirect action 361


Chapter II- Paulian action 361<br />

TITLE FOUR - VOLUNTARY EXECUTION OF<br />

OBLIGATIONS 363<br />

Chapter I- Payment in general 363<br />

Chapter II - Payment with subrogation 365<br />

Chapter III- Delegation of payment 366<br />

Chapter IV- Tender and deposit 366<br />

Chapter V- Imputation of payment 369<br />

TITLE FIVE - INEXECUTION OF OBLIGATIONS 371<br />

General provisions 371<br />

Chapter I- Putting in default 371<br />

Chapter II - Execution in kind 373<br />

Chapter III- Reduction of obligations 374<br />

Chapter IV- Resolution of contract 374<br />

Chapter V- Resiliation of contract 375<br />

Chapter VI - Damages 376<br />

General provisions 376<br />

Section I - Damage 377<br />

§- 1 Nature of damage 377<br />

§-2 Assessment of damage 377<br />

I - Legal assessment 377<br />

II - Conventional assessment 378<br />

XV<br />

1 Clauses and notices excluding or<br />

limiting responsibility 378<br />

2 Penal clauses 379<br />

Section II- Apportionment of responsibility 380<br />

TITLE SIX - EXTINCTION OF OBLIGATIONS 381<br />

Chapter I - Compensation 381<br />

Chapter II - Novation 383<br />

Chapter III - Confusion 384<br />

Chapter IV- Release of debt 384<br />

Chapter V- Impossibility of execution of obligations 385<br />

Chapter VI - Extinctive terms 386


XVI<br />

TITLE SEVEN - NOMINATE CONTRACTS 387<br />

Chapter I - Sale 387<br />

Section I - Sale in general 387<br />

§ - 1 General provisions 387<br />

§ - 2 Obligations of the vendor 388<br />

I - General provisions 388<br />

II - Guarantee of the right of ownership 389<br />

III - Delivery 389<br />

IV - Defects in the thing 390<br />

§ -3 Obligations of the purchaser 391<br />

§ - 4 Special provisions concerning sale of<br />

moveable property 391<br />

§ - 5 Special provisions concerning sale of<br />

immoveable property 392<br />

Section II - Special rules governing certain sales 393<br />

- 1 Auction sales 393<br />

I - General provisions 393<br />

II - Special provisions governing forced<br />

auction sales 395<br />

- 2 Bulk sale 395<br />

- 3 Sale of debts 398<br />

-4 Sale of rights of succession 399<br />

§-5 Sale of litigious rights 400<br />

Chapter II - Gifts 401<br />

Section I- Gifts inter vivos 401<br />

- 1 General provisions 401<br />

-2 Obligations of the parties 402<br />

- 3 Conditions and charges 404<br />

§ - 4 Gifts with a charge in favour of a third<br />

party 404<br />

§ - 5 Moveable property 405<br />

§ - 6 Immoveable property 405<br />

Section II - Gifts made by marriage contracts 406<br />

Chapter III - Lease of things 407<br />

Section I - Rules applicable to all leases 407<br />

§ - 1 General provisions 407<br />

§ - 2 Obligations of the lessor 407<br />

-3 Obligations of the lessee 409<br />

-4 Termination of the contract 411<br />

Section II - Special provisions respecting leases of<br />

immoveables 412


XVII<br />

§- 1 General provisions 412<br />

§ - 2 Special provisions respecting leases of<br />

dwellings 415<br />

I - General provisions 415<br />

II - Obligations of the parties 415<br />

III - Resiliation of the lease 418<br />

IV - Prohibitions 419<br />

V - Offences 420<br />

Chapter IV - Affreightment 422<br />

Section I - General provisions 422<br />

Section II- The contract of affreightment 422<br />

§ - 1 Provisions applicable to all contracts of<br />

affreightment 422<br />

§-2 Kinds of affreightment 423<br />

I - Charter by demise 423<br />

II - Time-charter 424<br />

III - Voyage-charter 425<br />

Chapter V - Transport 427<br />

Section I - Provisions applicable to all means of<br />

transport 427<br />

§ - 1 General provisions 427<br />

§-2 Provisions respecting transport of persons 427<br />

§-3 Provisions respecting transport of goods 428<br />

Section II - Special provisions respecting transport<br />

by water 432<br />

§- 1 Transport of persons 432<br />

§ - 2 Carriage of goods 432<br />

Chapter VI- Contract of employment 440<br />

Chapter VII - Contract of enterprise 443<br />

Section I - General provisions 443<br />

Section II - Special provisions 444<br />

Section III- Termination of the contract 446<br />

Chapter VIII- Contract for services 447<br />

Section I - General provisions 447<br />

Section II- Termination of the contract 447<br />

Chapter IX - Mandate 448<br />

Section I - General provisions 448<br />

Section II- Obligations of the mandatary 449<br />

§ - 1 Obligations of the mandatary towards the<br />

mandator 449<br />

- 2 Obligations of the mandatary towards third<br />

parties 450


XVIII<br />

Section III - Obligations of mandators 451<br />

§ - 1 Obligations of the mandator towards the<br />

mandatary 451<br />

§ - 2 Obligations of the mandator towards third<br />

parties 452<br />

Section IV- Termination of mandate 453<br />

Chapter X - Partnerships 454<br />

Section I- Partnerships in general 454<br />

§ - 1 General provisions 454<br />

§ - 2 Obligations and rights of the partners<br />

towards each other and towards the<br />

partnership 455<br />

§ - 3 Relations of the partnership and the<br />

partners with third parties 456<br />

§ - 4 Termination of partnerships 457<br />

Section II - Limited partnerships 460<br />

Section III - Associations 462<br />

Chapter XI- Deposit 463<br />

Section I - General provisions 463<br />

Section II- Obligations of the depositary 464<br />

Section III- Obligations of the depositor 465<br />

Chapter XII - Sequestration 466<br />

Chapter XIII- Loan 467<br />

Section I - General provisions 467<br />

Section II - Loan for use 467<br />

Section III - Loan for consumption 468<br />

Section IV- Loan of money 469<br />

Chapter XIV - Suretyship 469<br />

Section I - General provisions 469<br />

Section II- Effects of suretyship 471<br />

§ - 1 Effects between creditor and surety 471<br />

§ - 2 Effects between debtor and surety 471<br />

§ - 3 Effects between sureties 472<br />

Section III- Extinction of suretyship 472<br />

Chapter XV - Insurance 473<br />

Section I - General provisions 473<br />

§ - 1 The nature and classes of insurance 473<br />

§ 2 Formation and content of contracts 474<br />

§ -3 Representations and warranties of the<br />

insured in non-marine insurance 476<br />

4 Imperative provisions 477


XIX<br />

Section II- Insurance of persons 477<br />

§ - 1 General provisions 477<br />

I - Contents of policy 477<br />

II Insurable interest 479<br />

III Statement of age and risk 480<br />

IV - Effective date and issue 481<br />

V - Premiums, advances and<br />

reinstatements 481<br />

VI - Payment of insurance 483<br />

VII - Provisions applicable to accident and<br />

sickness insurance 483<br />

VIII - Nullity of certain contracts 485<br />

§ - 2 Beneficiaries and contingent owners 485<br />

I - Conditions of the designation 485<br />

II - Effects of designation 487<br />

§-3 Transfer of insurance 488<br />

§ - 4 Attempts on the life of the insured 489<br />

Section III - Damage insurance 489<br />

§ - 1 General provisions 489<br />

I - Indemnity in insurance 489<br />

II - Increase in risk 490<br />

III - Resiliation of the contract 490<br />

IV - Payment of the premium 491<br />

V - Notification of loss 491<br />

VI - Payment of indemnities 492<br />

VII - Transfer of insurance 492<br />

§-2 Property insurance 492<br />

I - Contents of the policy 492<br />

II - Insurable interest 493<br />

III - Amount of the insurance 493<br />

IV - Indemnity 494<br />

§ - 3 Provisions relating to fire insurance 495<br />

§ - 4 Liability insurance 496<br />

Section IV- Marine insurance 497<br />

§ - 1 General provisions 497<br />

§ - 2 Insurable interest 499<br />

I - Necessity of interest 499<br />

II - Cases of insurable interest 499<br />

III - Extent of insurable interest 500<br />

§ - 3 Transfer of insurance 500<br />

§-4 Measure of insurable value 501<br />

- 5 Proof and ratification of the contract 502


XX<br />

-6 Contract and policy 502<br />

I - Usage 502<br />

II - Subscription 502<br />

III - Kinds of contracts 502<br />

§ - 7 Rights and obligations of the insured 504<br />

I - Payment of the premium 504<br />

II - Disclosures and representations 505<br />

III - Warranties 506<br />

IV - Notice and proof of loss 509<br />

§-8 Rights and obligations of the insurer 510<br />

- 9 Voyage 511<br />

I - General provisions 511<br />

II - Change of voyage 512<br />

III - Deviation 512<br />

IV - Delay 513<br />

V - Excuses for delay or deviation 513<br />

- 10 Losses and abandonment 514<br />

§ - 11 Partial losses and various charges 518<br />

§-12 Measure of indemnity 519<br />

- 13 Subrogation 524<br />

- 14 Double insurance 525<br />

§-15 Underinsurance 526<br />

§ - 16 Mutual insurance 526<br />

Chapter XVI - Annuities 526<br />

Section I - General provisions 526<br />

Section II - Special provisions governing life<br />

annuities 528<br />

Section III - Special provisions governing term<br />

annuities 529<br />

Chapter XVII - Gaming and wagering contracts 530<br />

Chapter XVIII - Settlements 530<br />

Chapter XIX- Arbitration 531<br />

Section I - General provisions 531<br />

Section II - Arbitration procedure 532<br />

§-1 Appointment of arbitrators 532<br />

§ - 2 Arbitration award 533<br />

Section III - Motion for homologation or for<br />

annulment 535


XXI<br />

BOOK SIX - EVIDENCE 537<br />

Chapter I - General provisions 539<br />

Chapter II- How proof is made 540<br />

Section I- Proof by writings 540<br />

§- 1 Copies of statutes 540<br />

- 2 Authentic writings 540<br />

- 3 Semi-authentic writings 542<br />

- 4 Private writings 543<br />

§ - 5 Unsigned writings, private registers and<br />

papers 544<br />

Section II - Testimony 544<br />

Section III - Presumptions 546<br />

Section IV - Admissions 547<br />

Chapter III - Admissibility of means of proof 549<br />

BOOK SEVEN - PRESCRIPTION 551<br />

TITLE ONE - PRESCRIPTION IN GENERAL 553<br />

Chapter I - General provisions 553<br />

Chapter II- Renunciation of prescription 554<br />

Chapter III- Suspension of prescription 554<br />

Chapter IV- Interruption of prescription 555<br />

TITLE TWO - ACQUISITIVE PRESCRIPTION 559<br />

Chapter I - General provisions 559<br />

Chapter II - Conditions required for acquisitive<br />

prescription 559<br />

Chapter III- Periods for acquisitive prescription 561<br />

TITLE THREE - EXTINCTIVE PRESCRIPTION 563<br />

BOOK EIGHT - PUBLICATION<br />

OF RIGHTS 565<br />

Chapter I- Preliminary provisions 567<br />

Chapter II- Scope of publication 567


XXII<br />

Chapter III - Prenotation 569<br />

Chapter IV- Modalities of publication 571<br />

Section I - Preliminary conditions for publication 571<br />

Section II- Mechanism of publication 572<br />

§ - 1 General provisions 572<br />

§ - 2 Registration by deposit of documents in<br />

extenso or of extracts 573<br />

§ - 3 Registration by deposit of a memorial 573<br />

§ - 4 Registration procedure 574<br />

§-5 Renewal of registration 579<br />

Section III- Plans and books of reference 580<br />

Chapter V- Effects of publication 583<br />

Section I- Beneficiaries of publication 583<br />

Section II- Opposability and rank of rights 584<br />

Section III- Protection of third parties 585<br />

Chapter VI - Cancellation 585<br />

Section I- Formalities and effects of cancellation 585<br />

Section II - Judicial sales and other forced sales 588<br />

BOOK NINE - PRIVATE INTERNATIONAL<br />

LAW 591<br />

Preliminary chapter - Application of laws 593<br />

Chapter I- General principles 593<br />

Chapter II - Conflicts of laws 594<br />

Chapter III- Conflicts of jurisdictions 603<br />

Chapter IV - Recognition and enforcement of foreign<br />

decisions 605<br />

Chapter V - Recognition and enforcement of foreign<br />

arbitration awards 612<br />

Chapter VI - Immunity from civil jurisdiction and<br />

execution 613<br />

TABLES OF CONCORDANCE 621


FOREWORD<br />

XXIII<br />

To the many who have followed the work of the <strong>Civil</strong><br />

<strong>Code</strong> Revision Office, the <strong>Draft</strong> <strong>Civil</strong> <strong>Code</strong> will come as<br />

something neither entirely new nor completely familiar.<br />

Its broad outlines have become apparent with the<br />

publication, commencing in 1966, of the reports of the various<br />

Committees entrusted with the revision of each of the subjectmatters<br />

covered by the <strong>Code</strong>.<br />

However, the unavoidable division of the task inevitably<br />

resulted in all too great a distortion of a work requiring<br />

cohesion and unity. But now the pieces have been brought<br />

together, the unorganized has been put in order and the<br />

scattered has been assembled.<br />

I - The aims<br />

When the legislature decided in 1955 to proceed with<br />

the revision of the <strong>Civil</strong> <strong>Code</strong>, it confined itself to a brief<br />

statement of the general terms of reference within which the<br />

jurist appointed was to work. In so doing, it did not lay down<br />

the lines along which the revision was to be carried out and the<br />

direction the work was to take and, consequently, it did not<br />

indicate its scope. Was it a question of simply making quick<br />

and partial improvements where changes were most urgently<br />

needed? The contrary view was taken, in the belief that all the<br />

basic institutions of our civil law should undergo a collective<br />

and systematic rethinking.<br />

What the revision should consist of, and what we strove<br />

for, cannot be more aptly expressed than it was by Professor<br />

Andre Tunc when he wrote (1): "II ne s'agit pas de tout<br />

bouleverser, mais de tout revoir; de se demander loyalement<br />

devant ces phenomenes nouveaux et aussi devant les transformations<br />

techniques etpsychologiques de la societe, ce qui, dans<br />

FAncien, garde sa force et, parfois, sa vertu, et ce qui gene


XXVIII<br />

described by Professor Rene David during the celebration of<br />

the centenary of the <strong>Civil</strong> <strong>Code</strong>, consists essentially of a<br />

"style": it is a particular mode of conception, expression and<br />

application of the law, and transcends legislative policies that<br />

change with the times in the various periods of the history of a<br />

people.<br />

Did Quebec's <strong>Civil</strong> law become any the less civilian in<br />

1866 when it accepted the principle of the consensual transfer<br />

of property, or in 1915 when it radically altered the spouse's<br />

rights of succession, or in 1969 when it adopted the partnership<br />

of acquests as the matrimonial regime of the general law?<br />

Will it become any less civilian by the acceptance of the<br />

substitution of parental authority for paternal authority, the<br />

introduction of legal tutorship by parents over the property of<br />

their children of minor age, the reintroduction of a successoral<br />

reserve for the benefit of the surviving consort, or of a regime<br />

of lesion among persons of major age based on both a<br />

discrepancy in the prestations and the exploitation of one<br />

party by the other, the creation of a general regime of<br />

hypothecs on moveable property, or of a regime which,<br />

contrary to the rule of accession, would enable someone to be<br />

completely at home on someone else's property? Loyalty to<br />

the civilian tradition demands a constant renewal of our<br />

institutions, and the adaptation of legal techniques to society's<br />

changing needs.<br />

The determination to keep the civilian system vigorous<br />

made it necessary to recreate the organic unity of the <strong>Civil</strong><br />

Law by the reintegration into the <strong>Code</strong> of a variety of specific<br />

laws which, so long as they remained outside it, were evidence<br />

of its slow withering away. The same motivating force also led<br />

to the retention of everything in the existing law that was not<br />

in need of change; there are more than a few provisions which<br />

reproduce existing law either word for word or in a somewhat<br />

modernized form in the interests of exactitude or clarity.


XXIX<br />

In looking through the <strong>Draft</strong> <strong>Civil</strong> <strong>Code</strong>, one will<br />

recognize a good many familiar landmarks, some of them<br />

refurbished, just as one will also discover certain marked<br />

changes in the landscape. Since there will be found in the<br />

introductions to the various Books of the <strong>Draft</strong> detailed<br />

descriptions of the principal changes contained in each of<br />

them, only the more striking features will be set forth here.<br />

II - The principal features of the reform<br />

1. Preeminence of the human person<br />

It has often been said that the <strong>Civil</strong> <strong>Code</strong> was designed<br />

for landowners and those in a position to live off their<br />

investments, that it is more concerned with the protection of<br />

property than with respect for human rights. It was for this<br />

reason that there existed a desire that the recognition of the<br />

role of the human person, along with affirmation and protection<br />

of human dignity, be one of the main features of the<br />

<strong>Draft</strong>.<br />

It is not by accident that the first article of the <strong>Draft</strong><br />

reads as follows:<br />

"Every human being possesses juridical personality".<br />

This proceeds, as was ardently wished by our colleague<br />

Louis Baudouin (5), from a determination to put the human<br />

person, with its rights and duties, in its rightful place as the<br />

cornerstone of Private Law relationships.<br />

A growing consciousness of the rights of children also<br />

led to the recommendation that the distinction, firmly drawn<br />

even today, between legitimate and illegitimate children, be<br />

abolished. The traditional rules, stemming from a philosophy<br />

which considered the transmission of an inheritance more<br />

important than the development of the child, had to go.


XXIV<br />

Velaboration de regies et de techniques nouvelles quipourraient<br />

mieux servir Vhomme contemporain.''<br />

The new <strong>Civil</strong> <strong>Code</strong> had to reflect the social, moral and<br />

economic realities of today's Quebec; it had to be a body of<br />

law that was alive and contemporary, and which would be<br />

responsive to the concerns, attentive to the needs and in<br />

harmony with the requirements of a changing society in<br />

search of a new equilibrium.<br />

In spite of the affinity indicated by the legislature in<br />

1955 between the present revision and the 1866 codification,<br />

the task to be accomplished seemed to bear little resemblance<br />

to that entrusted to Caron, Morin and Day JJ. over a century<br />

ago. The latter were instructed essentially not to reform, but to<br />

reformulate the law in such a manner as to transform it from<br />

an "archaic" legal system into a "modern" legal system,<br />

following the example of France and of so many other<br />

countries of Europe and America which had already adopted<br />

their own codes. The security of a single and ordered legislative<br />

enactment was to replace the uncertainty created by a<br />

multiplicity of sources that were widely dispersed.<br />

However, the legislature specifically ordered that it was<br />

the law that was in force at that time that was to be codified,<br />

and that it was to be done along the same lines and according<br />

to the same plan as the French <strong>Civil</strong> <strong>Code</strong>. The entirety of the<br />

basic institutions of our private law as it then existed was to be<br />

regrouped into a coherent and organic whole, expressed in<br />

clear and simple terms.<br />

The aim of the codification was thus put into a context<br />

in which the determination to preserve the then existing law<br />

overrode any desire for change (2). As no need was felt to<br />

question traditional values, real innovations were few and far<br />

between.<br />

The purpose was to construct a <strong>Code</strong> which, embodying


XXV<br />

the past, would serve as a defence against outside influences<br />

which threatened the integrity of the <strong>Civil</strong> Law; it would<br />

guarantee the survival of a legal system that was distinctive<br />

but exposed due to its isolation within a continent in which the<br />

Common Law held sway. Regarded, like the French <strong>Civil</strong><br />

<strong>Code</strong>, as the embodiment of Justice and Reason, it seemed<br />

inconceivable that its principles could be shaken by the<br />

vicissitudes of life. It was believed that the <strong>Civil</strong> <strong>Code</strong> would<br />

escape the effects of the passage of time.<br />

Nevertheless, far from remaining sheltered from the<br />

drastic changes of the past century, this country has experienced<br />

all the social upheavals brought about by the industrial<br />

revolution, two world wars, major scientific and technological<br />

discoveries, urbanization, the advent of a consumer society<br />

and the age of obsolescence - phenomena which have profoundly<br />

changed the way of life of a century ago and altered<br />

traditional outlooks and even the institutions of the private<br />

law, whether it be the family, ownership, contracts, or civil<br />

responsibility.<br />

In this connection, instead of putting the law into a<br />

strait-jacket, the <strong>Code</strong> should have been the means of updating<br />

legislative policy. However, both on account of its image<br />

and the role assigned to it in Quebec society, the <strong>Code</strong> had<br />

ceased to be a symbol of permanence, and has instead become<br />

one of rigidity, the reflection of a static, even stagnant,<br />

conception of a certain social order. The result was an everwidening<br />

gulf between law and life.<br />

There should not be underestimated, however, the<br />

importance of various legislative innovations in the area of the<br />

<strong>Civil</strong> Law, the number of which has naturally tended to<br />

accelerate in recent decades. Under the pressure of the<br />

requirements of a society undergoing change, it was necessary<br />

to attempt to find solutions to the most urgent problems<br />

arising from modern life where the <strong>Code</strong>'s solutions were


XXVI<br />

either non-existent or out-of-date. But to appreciate these<br />

efforts at legislation, it must also be borne in mind that the<br />

measures adopted were often conceived in haste, and, still<br />

more often, drafted in a language, a style and a spirit all too<br />

foreign to the civilian tradition of conciseness and clarity.<br />

Thus, on the fringes of the <strong>Code</strong>, and sometimes in contradiction<br />

with it, a body of civil law legislation was developing<br />

which had no coherent plan, and was not in harmony with the<br />

spirit of the <strong>Code</strong>.<br />

There is no doubt that judicial interpretation also made<br />

an important contribution to the process of evolution. It was<br />

by dint of patient work mixed at times with a certain boldness<br />

that courts, in approaching their task of applying the rules of<br />

the <strong>Civil</strong> <strong>Code</strong>, rendered justice in full measure. In 1804,<br />

Portalis said: " Un <strong>Code</strong>, quelque complet quHlpuisseparaitre,<br />

n'est pas plutbt acheve, que mille questions inattendues<br />

viennent s'offrir au magistrat. Car les lois, une fois redigees,<br />

demeurent telles qu'elles ont ete ecrites. Les hommes, au<br />

contraire, ne se reposent jamais." (3)<br />

But while the primary function of the courts is not to<br />

ensure a systematic and coordinated evolution of the rules of<br />

law, one can only deplore the infiltration, both unjustified and<br />

unnecessary, of Common Law concepts the application of<br />

which were sanctioned by the authority of certain judicial<br />

decisions. This has resulted in a confusion in the mind, and<br />

inconsistency in the positive law.<br />

The result is that, at this point in time, our <strong>Civil</strong> Law<br />

offers a number of facets which are not in harmony with each<br />

other. First of all, the <strong>Civil</strong> <strong>Code</strong> has remained largely<br />

unchanged in its basic philosophies: it still bears the stamp of<br />

authoritarianism in family law, individualism in property law<br />

and liberalism in matters of conventional obligations -<br />

doctrines which prevailed when it was drafted, but which<br />

everyone so well knows are outmoded by today's reality and


XXVII<br />

by the prevailing trends of contemporary thought. Secondly,<br />

there is that body of so-called "statutory" legislation which<br />

discloses the existence of a will to adapt to changing circumstances,<br />

but which is too often set forth in an alien form and in<br />

language that is barbaric. Finally, there is the jurisprudence<br />

that sought to render justice and equity, but which has been<br />

torn between the attractions of opposite poles.<br />

It can be readily appreciated from the foregoing that an<br />

extensive reform was necessary to restore to the <strong>Civil</strong> <strong>Code</strong> its<br />

primary function: that of governing relations between citizens<br />

in accordance with the norms, concepts and techniques of our<br />

time. In short, the <strong>Civil</strong> <strong>Code</strong> had to be made to reflect the<br />

society of Quebec in the latter part of the twentieth century.<br />

Thus the task of revision could not be approached in the<br />

same spirit as that which guided the first codification. In<br />

comparison with what was done a little more than a century<br />

ago, it seemed to us that the situation called for a complete<br />

reversal in the objectives to be achieved. The obsolescence of<br />

the <strong>Civil</strong> <strong>Code</strong> required that priority be given to reforming the<br />

institutions of the <strong>Civil</strong> Law, and that there be undertaken, in<br />

the light of experience and of comparative law, a systematic<br />

examination of the entire <strong>Code</strong>, with a view to removing the<br />

traces of a vanished past and to bringing the law into harmony<br />

with contemporary reality.<br />

To be sure, this rethinking of the fundamental principles<br />

of the <strong>Code</strong> led to changes being proposed in the traditional<br />

rules of the <strong>Civil</strong> Law that are at times profound. Despite this,<br />

we believe that we have not broken with our civilian heritage<br />

(4). For, in accordance with the felicitous formulation of our<br />

colleague Professor Andre Morel: "Innovation is not synonymous<br />

with treason, nor does faithfulness rule out change".<br />

The <strong>Civil</strong> Law is not simply a collection of rules drawn from<br />

Roman, ecclesiastical or customary law, and handed down to<br />

us in a solidified form. The <strong>Civil</strong> Law, as it was so aptly


XXX<br />

While the right of the child to affection and security is<br />

emphasized, paternal authority, which was justified by a<br />

patriarchal view of the family, would be replaced by parental<br />

authority. This would put both parents on an equal footing in<br />

making decisions as to the child's education and upbringing.<br />

For the protection of the child against abuse, provision has<br />

been made for the withdrawal of parental powers or even the<br />

deprivation of parental authority. The same philosophy made<br />

the best interests of the child the determining factor in any<br />

decision concerning him, particularly in matters of adoption,<br />

tutorship, the separation or divorce of his parents, and the<br />

granting or withholding of medical services.<br />

Tutorship was also the object of a thorough re-organization<br />

aimed, amongst other things, at entrusting parents with<br />

the administration of the property devolving to their children.<br />

This administration, subjected to a periodic verification, is<br />

intended to ensure both flexibility and efficiency in the<br />

representation of a minor and in the management of his<br />

property.<br />

The adoption of the principle of equality between<br />

consorts had many ramifications in various aspects of family<br />

law. It is suggested that the married woman keep her maiden<br />

name; that the establishment of the conjugal domicile be the<br />

result of the joint decision of the consorts; that consorts share<br />

parental authority and marital responsibilities; in short, that<br />

they make all important family decisions together. Equality<br />

between consorts had led to the proposal in 1968 that the<br />

partnership of acquests be adopted as the common regime of<br />

property rights; it also leads today to the modernization of the<br />

community of property regime, as well as to shared responsibility<br />

for the damage caused by a child of minor age.<br />

The desire to protect members of the family unit lies<br />

behind a variety of measures such as raising the age at which<br />

marriage may be contracted to eighteen, the protection of the


XXXI<br />

family residence, and the restrictions imposed on the freedom<br />

of willing by the creation of a legal reserve in favour of the<br />

surviving spouse, the acknowledgment that support continues<br />

to be owed even after the death of the debtor, and by the<br />

preferential attribution of certain property in the succession.<br />

Furthermore, no modern judicial system can fail to take<br />

cognizance of the situation of unmarried persons who have<br />

chosen to live together on an open continuing basis. Because<br />

of this, and out of respect for individual freedom, rules to<br />

govern these de facto unions were deemed necessary to ensure<br />

at least the protection of the consorts, their children and<br />

property, without, however, there being imposed on the<br />

parties involved any constraints or obligations which they<br />

were precisely seeking to avoid.<br />

In the revision of the classic rules governing contracts, it<br />

was once again the desire to protect the dignity of the person,<br />

this time in his role as a consumer of goods and services, that<br />

was the motivating force. Well-founded criticisms of the myth<br />

that contracting parties are free and equal have once again<br />

made meaningful the famous warning by Lacordaire who, in<br />

the middle of the last century, was already opposing triumphant<br />

liberalism in these words: "Entre lefort et lefaible, c'est<br />

la liberte qui opprime; c'est la loi quiaffranchit.''<br />

Surely, the principle of freedom in legal relationships<br />

would remain, but its application must be tempered when, in a<br />

given social or economic situation, it leads to abuses that<br />

society cannot tolerate. Consequently, a degree of formalism<br />

in contracts or the inclusion therein of a mandatory content<br />

were deemed necessary in some instances in order to reestablish<br />

a contractual balance, or at least to make the party<br />

who is in the weaker position aware of the consequences of the<br />

undertaking he is entering into. This applies, for example, to<br />

contracts of sale, residential leases and insurance policies.<br />

It is also proposed that the courts be allowed increased


XXXII<br />

powers of intervention in contractual matters so that injustices<br />

can be rectified when certain clauses appear excessive or<br />

abusive, or when, as a result of circumstances beyond the<br />

control of either party, the execution of the obligations of the<br />

agreement would entail undue hardship for one of them. This<br />

is why it has been recommended that an old civilian tradition<br />

be revived by the reintroduction of the concept of lesion<br />

between parties of major age which had been rejected by the<br />

<strong>Code</strong> in 1866, but which has reappeared from time to time in<br />

various Quebec laws. Similarly, the <strong>Draft</strong> allows for the<br />

revision of contracts on the basis of imprecision and denies the<br />

creditor the right to resolution or resiliation when the inexecution<br />

is of minor importance. In the same vein, it prohibits<br />

clauses excluding responsibility in cases of injury to the<br />

person.<br />

And in an age where there is, with good reason, growing<br />

consciousness of fundamental human rights, it seemed opportune<br />

to insert a reminder in a <strong>Civil</strong> <strong>Code</strong> that rights correspond<br />

to duties; that the affirmation of the rights of one<br />

carries with it respect for the rights of others. This is why the<br />

<strong>Draft</strong> provides rules enunciating the fundamental duties of<br />

persons, no longer under the cover of a "fault", but expressed<br />

in terms of positive standards of behaviour to be observed by<br />

citizens in their relationships with each other.<br />

2. Modernizing the law<br />

The modernization of Quebec's <strong>Civil</strong> Law to bring it<br />

into harmony with the economic and social realities of our<br />

time is another determining factor that led to a number of<br />

proposed reforms. Consider in particular the expansion of the<br />

concept of trusts; the introduction of rules on the right of<br />

superficies and, in particular, with respect to construction<br />

leases; the introduction into the <strong>Code</strong> of hypothecs on<br />

moveable property regrouping all types of real security on<br />

moveable property by the integration of traditional forms of<br />

real security with other contractual devices having the same


XXXIII<br />

objective (such as conditional sales, sales with a right of<br />

redemption). Consider also the diversification in the hypothecary<br />

recourses, and the abolition of all privileges.<br />

Lease and hire of work, whose name was as out-of-date<br />

as the rules governing it, has been replaced by the three types<br />

of contract actually in use: the contract of employment, the<br />

contract for services, and the contract of enterprise. A contract<br />

of arbitration with respect to both present and future disputes,<br />

whose validity is fully recognized, takes its rightful place in the<br />

<strong>Draft</strong>.<br />

The law on evidence also underwent certain changes,<br />

the objects of the principal ones being the codification of<br />

customary rules and an increased emphasis on testimony. One<br />

proposed rule which deserves to be mentioned and whose<br />

necessity is more and more obvious would allow the courts to<br />

refuseproprio motu illegally obtained evidence.<br />

The process of modernization led to a simplifying of the<br />

law of prescription and a centralization of the system governing<br />

acts of civil status. Here, as in the field of registration of<br />

real rights, the reform presupposes the establishment of data<br />

processing equipment like that which exists in a number of<br />

neighbouring jurisdictions, without which the application of<br />

an up-to-date and effective legal system would be severely<br />

hampered.<br />

Finally, the desire to codify, and occasionally to clarify,<br />

jurisprudential solutions, and to make the <strong>Civil</strong> Law conform<br />

to international texts as applied in a number of countries,<br />

inspired many innovations which are found more particularly<br />

in the chapter on the contract of transport, and in the Book on<br />

Private International Law which would be the final Book in<br />

the new <strong>Civil</strong> <strong>Code</strong>.


XXXIV<br />

III - The method<br />

It is easy to see that no one person could achieve alone<br />

the objectives aimed at. We have already said that this reform<br />

was conceived as a collective effort in reflection. It therefore<br />

seemed essential to provide for different stages of participation<br />

and consultation to enable professionals and laymen to<br />

express their opinions on the various aspects of the reform.<br />

The first stage of consultation consisted of setting up<br />

study committees responsible for submitting drafts or reforms<br />

in particular areas of the <strong>Civil</strong> Law.<br />

The committee was the key to the reform. Consisting<br />

generally of three to seven jurists - judges, lawyers, civil<br />

servants and professors - it was able to count on the constant<br />

collaboration of research assistants; it was able to commission<br />

special studies, and to consult experts -jurists and others,<br />

and to interview individuals or organizations that might be<br />

affected by a particular reform; and finally, it prepared a<br />

report comprising a draft reform accompanied by explanatory<br />

notes both French and English.<br />

The second stage of consultation involved outside<br />

participation. Its main purpose was to submit the committee<br />

reports to the free and unrestricted appraisal of interested<br />

persons and organizations. Thus, each of the forty-seven<br />

reports of the committees of the Office was printed in about<br />

2,000 copies which were distributed to government departments,<br />

courts, universities, professional organizations, unions,<br />

women's associations, political groups, religious bodies, social<br />

agencies, banking institutions, and news agencies, and also to<br />

an increasing number of individuals who on all sides showed<br />

an interest in the reform of the <strong>Code</strong>, and finally, to foreign<br />

civil and comparative law experts. Each was invited to submit<br />

observations and criticisms in writing by a certain date.<br />

Where the subject-matter was appropriate or the nature


XXXV<br />

of the observations warranted it, public study or information<br />

sessions were held to enable members of a committee to<br />

understand more fully the ideas of the authors of briefs, and<br />

even to enable authors of briefs to discuss among themselves<br />

the various legislative options in question. This method<br />

sometimes produced excellent results because it made it<br />

possible to realize that opposing interests are not always<br />

irreconcilable, that agreement could often be reached, or that<br />

a diversity of opinions did not always result from ill will, but<br />

most often from legitimately opposed interests. When these<br />

consultations were completed, the committee resumed study<br />

of its report in the light of the observations, comments and<br />

criticisms, and prepared the final reports which it submitted to<br />

the Office (6).<br />

The third stage of consultation consisted in coordinating<br />

the work of the study committees. Obviously, where every<br />

Committee, as it had the right to do, freely presented its<br />

legislative options, there could result - and this was a good<br />

thing - conflicts in legislative policy or terminology. In effect, it<br />

would be surprising if, in these days, a hundred and fifty<br />

jurists, representing the various sectors of the profession,<br />

belonging to different generations and coming from every<br />

corner of Quebec, each having his own political, social,<br />

religious or moral views, were to arrive at unanimity. Thus<br />

steps had to be taken to ensure the coordination of the work. A<br />

Coordinating Committee was set up, to which difficult cases of<br />

conflict in legislative policy were referred. A Reading Committee<br />

was established with responsibility for style and<br />

consistency in the vocabulary. Where necessary, final arbitration<br />

was brought to bear by the President of the Office.<br />

Thus was conceived and written the <strong>Draft</strong> <strong>Civil</strong> <strong>Code</strong><br />

which the National Assembly of Quebec will be called upon to<br />

examine and, if it approves, to adopt (7).<br />

It must be remembered, however, that the promulgation


XXXVI<br />

of a new <strong>Civil</strong> <strong>Code</strong> cannot be considered a final goal in itself,<br />

but only a fresh beginning. The success of the reform will, of<br />

course, depend upon the doctrinal and judicial interpretation<br />

given it; it will also depend on the setting up of a Family<br />

Court dispensing justice in a manner that recognizes the<br />

special characteristics of family disputes, and the establishment<br />

of administrative support machinery particularly with<br />

respect to civil status and the registration of real rights, so as to<br />

ensure, with speed and efficiency, while respecting individual<br />

freedoms, the necessary publicity that must be given to acts<br />

and deeds relating to persons and to property; but, above all,<br />

there most certainly will be no real success unless there is<br />

awareness that reform is only one stage in the juridical life of a<br />

people and that the evolution of practice and mores must be<br />

followed with a view to the continual adaptation of the <strong>Civil</strong><br />

<strong>Code</strong> to the new and ever changing needs of Quebec society.<br />

The <strong>Draft</strong> is the product of a collective effort over a<br />

period of more than twelve years. Many craftsmen have<br />

shaped the final work, each adding his valuable contribution<br />

in the various phases of the creation of the whole, whether it<br />

be in the writing of committee reports, the appraisal of<br />

proposed solutions, the coordination of the work or the<br />

preparation of the Final Report. We are deeply grateful to all<br />

(8).<br />

Particularly invaluable were the contributions of the<br />

members of the Coordinating Committee, the Reading Committee<br />

led by Professor Andre Morel, the team of translators<br />

presided over by Mr. Clive Meredith of the Translation<br />

Service of the Department of Communications of Quebec, the<br />

research associates of the Office who have so largely contributed<br />

in ensuring the scientific quality of the Report and who,<br />

in the final stage of the work, have assumed, under the<br />

responsibility of Me Renee DesRosiers de Lanauze, the<br />

delicate task of preparing the tables of concordance and the<br />

schedules of the Report, and the staff of the Secretariat


XXXVII<br />

directed by Mrs. Alice Archambault-Robaczewska, whose<br />

devotion and patience were severely tested.<br />

Finally, we would like to mention those who are no<br />

longer with us: Mtre Andre Lesage, notary, Professor Louis<br />

Baudouin, Dean Maximilien Caron, Mtre Marcel Faribault,<br />

notary, Mr. Justice Claude Gagnon, Mtre Bruce Cleven and,<br />

quite recently, the General Secretary Rapporteur of the Office,<br />

Mtre Yves Caron, a colleague and friend. Throughout these<br />

years, Mtre Caron was a tireless worker. He was no ordinary<br />

partner. His vitality and capacity for work resulted in a<br />

contribution to the work of the revision of the <strong>Civil</strong> <strong>Code</strong> that<br />

can only be described as outstanding.<br />

15 August 1977<br />

Paul-A. Crepeau, Q.C.<br />

Professor of <strong>Civil</strong> Law<br />

at <strong>McGill</strong> University.


XXXVIII<br />

(1) Preface to the work by Miss G. VINEY, Le declin de la responsabilite<br />

individuelle, Pans, L.G.D.J., 1965, p. ii.<br />

(2) See, on this subject, J.EC. BRIERLEY, Quebec's <strong>Civil</strong> Law Codification,<br />

(1968) U<strong>McGill</strong>L.J. 521.<br />

(3) Projet de <strong>Code</strong> civil, Paris, Lepetit jeune, An IX, Discours preliminaire,<br />

P. XII.<br />

(4) See, in this respect, F.-H. LAWSON, A Common lawyer looks at the <strong>Civil</strong><br />

Law, Ann Arbor, 1953.<br />

(5) See LOUIS M. BAUDOUIN, Les aspects generaux du droitprive dans la<br />

Province de Quebec, Paris, Dalloz, 1957, p. 147 et s.<br />

(6) If the proposed reform was urgent in nature, it was submitted to the<br />

Minister of Justice with the recommendation that it be incorporated in a<br />

separate bill without waiting for the overall reform. In this way, work<br />

and reports carried out by the Office inspired certain legislation<br />

regarding, in particular, civil marriage, adoption, declaratory judgments<br />

of death, the matrimonial regimes, the Public Curatorship, obligations<br />

between parents and natural children, the Charter of human rights and<br />

freedoms, the lease of things and insurance.<br />

(7) It must be remembered, however, that certain parts of the <strong>Draft</strong> cannot<br />

be implemented as such by the National Assembly because of the fact<br />

that the subject-matters do or might fall within the legislative authority<br />

of Parliament (see S. 91 par. 26 of the British North America Act; also S.<br />

92, par. 12 and 13). Such is the case in the area of Family law both in<br />

respect of internal rules and of conflict rules. But in view of the necessity,<br />

on the one hand, to present a homogeneous and coherent Family law<br />

<strong>Draft</strong>, and, on the other hand, of the impossibility of delineating the<br />

respective boundaries of Federal and Provincial jurisdictions, the <strong>Draft</strong><br />

was prepared, with the consent of the provincial authorities, without<br />

taking the constitutional question into account. Indeed, we believed that<br />

the problems of the family are first and foremost human problems and<br />

that we should not let such an astonishing and artificial distribution of<br />

legislative powers - where the search for political compromise loomed<br />

larger than the requirements of legal coherence - prevent the formulation<br />

of a comprehensive reform of family law. It will be for the competent<br />

authorities to solve this problem, either by agreeing to a new distribution<br />

of legislative powers or by each of the two authorities enacting the <strong>Draft</strong><br />

within the uncertain limits of its jurisdiction.<br />

(8) A list of those who contributed to the revision of the <strong>Civil</strong> <strong>Code</strong> will be<br />

found in Schedule VI.


BOOK ONE<br />

PERSONS


PERSONS<br />

TITLE ONE<br />

JURIDICAL PERSONALITY<br />

CHAPTER I<br />

ENJOYMENT OF CIVIL RIGHTS<br />

1 Every human being possesses juridical personality.<br />

2 Juridical personality is granted to legal persons created<br />

in accordance with the law.<br />

3 Juridical personality confers full enjoyment of civil<br />

rights, subject to express provision of law.<br />

4 Every person has a patrimony which consists of all his<br />

property and all his debts.<br />

He also possesses the extra-patrimonial rights and duties<br />

peculiar to his status.<br />

5 No person may renounce the enjoyment of his civil<br />

rights and of his fundamental liberties.<br />

CHAPTER II<br />

EXERCISE OF CIVIL RIGHTS<br />

6 Every person of major age has full exercise of his civil<br />

rights, subject to express provision of law.<br />

7 Similarly, every legal person has full exercise of its civil<br />

rights, except with respect to anything peculiar to a human<br />

person.<br />

The provisions of law regarding the exercise of civil


PERSONS<br />

rights by human persons apply to legal persons, insofar as<br />

possible.<br />

8 Every person must exercise his rights and perform his<br />

duties in accordance with the requirements of good faith.<br />

9 No person may exercise a right with the intent of<br />

injuring another, or in any way that may cause damage out of<br />

proportion to the benefit he may derive.<br />

10 No person may violate public order and good morals by<br />

any juridical act.<br />

11 No person may renounce the exercise of his civil rights<br />

and his fundamental liberties in a manner contrary to public<br />

order and good morals.<br />

CHAPTER III<br />

RESPECT OF PRIVACY<br />

12 Every person has the right to privacy.<br />

13 No person may invade the privacy of another without<br />

his consent or unless he is expressly authorized by law.<br />

In particular, no person may:<br />

1. enter property lawfully occupied by another or take<br />

anything from that property;<br />

2. voluntarily intercept or use any private<br />

communication;<br />

3. voluntarily monitor or use the image or voice of any<br />

person in a private place;<br />

4. observe a person's private life by any means;<br />

5. use a person's name, image, likeness or voice for any


PERSONS<br />

purpose other than the supplying of legitimate information<br />

for public opinion;<br />

6. use any correspondence, manuscript or other personal<br />

document belonging to another;<br />

7. divulge confidential information concerning the private<br />

life of another, contained in a file administered by the<br />

State or by another person.<br />

14 Every person has a right of access to any file concerning<br />

him which the law requires be kept.<br />

When the information contained in that file is false,<br />

incomplete or not pertinent to the purpose of those who hold<br />

it, the person concerned may have the information removed or<br />

corrected, without prejudice to his other rights.


PERSONS<br />

TITLE TWO<br />

HUMAN PERSONS<br />

CHAPTER I<br />

GENERAL PROVISIONS<br />

15 The human person is inviolable.<br />

No one may harm the person of another without his<br />

consent or unless he is authorized by law to do so.<br />

16 A person of major age may consent to alienate part of<br />

his body inter vivos, or to submit to a non-therapeutic<br />

experiment, provided the risk assumed is not disproportionate<br />

to the benefit anticipated.<br />

A minor may do the same with the authorization of his<br />

father and mother or, failing them, of the person who exercises<br />

parental authority and of a judge, provided no serious risk to<br />

his health results from this.<br />

The alienation must be gratuitous, unless the part of the<br />

body alienated is capable of regeneration.<br />

The consent must be given in writing; it may be<br />

revoked in the same way or, if the revocation is made in the<br />

presence of the person who was to carry out the removal or the<br />

experiment, by a verbal statement.<br />

17 No person may submit a child or a person of major age,<br />

incapable of discernment, to any non-therapeutic experiment<br />

which may endanger his health.<br />

18 A person of major age may decide in writing as to the<br />

nature of his funeral and the disposal of his remains. In the<br />

same way, he may gratuitously dispose of his remains or


g PERSONS<br />

authorize the removal of organs and tissues after his death, for<br />

medical or scientific purposes.<br />

A minor may do the same with the authorization of his<br />

father or mother or, failing them, of the person who exercises<br />

parental authority.<br />

The consent must be given in writing; it may be<br />

revoked in writing or verbally before a witness.<br />

19 A physician may remove part of the body of a deceased<br />

person if, failing prior instructions from the deceased, he<br />

obtains the consent of the consort or nearest relative of that<br />

person.<br />

This consent is not required when two physicians attest<br />

in writing to the impossibility of obtaining it in due time, the<br />

urgency of the operation and the serious hope of saving a<br />

human life.<br />

The death of the donor must have been ascertained by<br />

two physicians who in no way participate in the removal or in<br />

the transplantation.<br />

20 An autopsy may be performed only in cases provided for<br />

by law or where the deceased had consented in writing.<br />

A minor may also consent in writing to an autopsy, with<br />

the authorization of his father or mother or, failing them, of<br />

the person who exercises parental authority.<br />

21 An autopsy may be required by the attending physician,<br />

by the consort or the heirs of the deceased, his relatives in the<br />

first degree or those persons acting in their stead.<br />

22 An autopsy may also be required by an insurer if the<br />

circumstances surrounding the insured's death justify it.


PERSONS<br />

23 An application for an autopsy is made by summary<br />

motion to a judge of the Superior Court.<br />

It is served on the persons designated by the judge and<br />

in the manner prescribed by him, unless he dispenses with all<br />

service.<br />

CHAPTER II<br />

PROVISIONS RELATING TO CHILDREN<br />

24 Every child is entitled to the affection and security<br />

which his parents or those who act in their stead are able to<br />

give him, in order to ensure the full development of his<br />

personality.<br />

25 In every decision concerning a child, whether that<br />

decision is made by his parents, by the persons acting in their<br />

stead, by those entrusted with his custody or by judicial<br />

authority, the child's interest must be the determining factor.<br />

Consideration is given in particular to the child's age,<br />

sex, religion, language, character and family surroundings,<br />

and the other circumstances in which he lives.<br />

26 In every j udicial decision affecting the interest of a child,<br />

the court must consult that child if he is capable of discernment,<br />

unless circumstances do not permit this.<br />

27 The court must appoint an attorney to represent a child<br />

in any proceedings where that child's interest so requires.<br />

Any interested person, including the members of the<br />

court's auxiliary services, may apply for the appointment of<br />

an attorney.<br />

28 A child conceived is deemed born provided he is born<br />

alive and viable.


10 PERSONS<br />

29 A child is deemed to have been conceived within three<br />

hundred days before his birth.<br />

30 "Children" used alone means descendants in the first<br />

degree.<br />

"Grandchildren" means descendants in the second<br />

degree.<br />

"Descendants" used alone means all the posterity of a<br />

person, regardless of degree.<br />

31 Any reference to family relationship or to relationship<br />

by filiation in the law or in any act includes relationship by<br />

blood, whatever the circumstances of the birth, or by<br />

adoption.<br />

CHAPTER III<br />

NAME AND PHYSICAL IDENTITY<br />

Section I<br />

Attribution of name<br />

32 Every human person has a name consisting of one<br />

surname and at least two given names attributed to that<br />

person in his act of birth.<br />

33 A child bears his father's surname.<br />

However, if maternal filiation only has been established,<br />

he bears his mother's surname.<br />

34 A child whose paternal filiation and maternal filiation<br />

are not established bears the name attributed to him by the<br />

Registrar of <strong>Civil</strong> Status.


PERSONS 11<br />

35 If a disavowal or a contestation of paternity has been<br />

judicially allowed, a child loses his presumed father's<br />

surname.<br />

From the time of the judgment, he bears his mother's<br />

surname.<br />

36 A child who is recognized by his father under the<br />

conditions mentioned in Article 273 of the Book on The<br />

Family may bear his father's surname.<br />

He may apply by motion to have the registers of civil<br />

status corrected.<br />

37 If the child is recognized by his mother only, he may<br />

bear her surname.<br />

He may also apply by motion for correction of the<br />

registers of civil status.<br />

38 The motion mentioned in Articles 36 and 37 is submitted<br />

to the court by the father, the mother, the legal representative<br />

of the child if the child is a minor, or the child himself if he<br />

is fourteen years old.<br />

A child who has come of age must submit the application,<br />

on pain of forfeiture, within two years after he reaches<br />

the age of majority.<br />

39 Except in cases of adoption, the change in a surname<br />

resulting from a change in civil status does not entail any<br />

change in the given names.<br />

40 A child's given names are chosen by his parents.<br />

Where they cannot agree, each parent gives him one<br />

name.<br />

41 An adopted person bears the surname of the person who


12 PERSONS<br />

adopts him; when adoption is by consorts, he takes the<br />

surname of the husband unless, on motion by the person<br />

adopting or by the adopted person or his tutor, the court<br />

decides that the original surname should be retained or the<br />

name of the person adopting should be added.<br />

42 Any change in the surname of an adopted person entails<br />

the same change for any minor child of his who bears the same<br />

name.<br />

If that minor child is fourteen years old, however, he<br />

may object to the change.<br />

43 On motion by the person adopting or by the adopted<br />

person, the court may change the given names of the child.<br />

44 A copy of the judgment changing the surname of a<br />

person in accordance with Articles 38, 41, 42 and 43 is<br />

forwarded to the Registrar of <strong>Civil</strong> Status by the prothonotary<br />

or the clerk of the court which rendered it.<br />

45 Consorts retain their respective surnames and given<br />

names throughout their marriage.<br />

Section II<br />

Change of name<br />

46 A change of name other than one made under Section I<br />

may be authorized only by the Registrar of <strong>Civil</strong> Status, in<br />

accordance with the rules of this section.<br />

47 A change of name may be authorized:<br />

1. when the name is too difficult to pronounce or to use,<br />

particularly by reason of its foreign sound;


PERSONS 13<br />

2. when the name could subject the petitioner to ridicule or<br />

when it has become infamous;<br />

3. when the name generally used by the petitioner does not<br />

correspond to that entered in his act of birth;<br />

4. for any other reason deemed sufficient by the Registrar<br />

of <strong>Civil</strong> Status or, in the event of appeal, by the judge.<br />

48 Only a Canadian citizen who has resided in Quebec for<br />

one year may apply for a change of name.<br />

49 A minor fourteen years old may apply alone for a<br />

change of name.<br />

50 A change in the name of the petitioner entails the same<br />

change for any minor child of his who bears the same name.<br />

However, if that child is fourteen years old, he may<br />

object to the change.<br />

Section HI<br />

Change of physical identity<br />

51 Any unmarried Canadian citizen who has resided in<br />

Quebec for one year and has successfully undergone medical<br />

and surgical treatment to transform his sexual features may<br />

have his act of birth altered by the Registrar of <strong>Civil</strong> Status.<br />

52 A change of physical identity allows only the modification,<br />

in the act of birth, of the entries relating to the sex of the


14 PERSONS<br />

petitioner and to his given names; the entries must be in<br />

keeping with his new physical identity.<br />

53 A change of surname is authorized only in exceptional<br />

circumstances assessed by the Registrar of <strong>Civil</strong> Status.<br />

Section IV<br />

Effects of change of name or of physical identity<br />

54 A change of name or of physical identity does not affect<br />

the rights and obligations of a person.<br />

55 Acts, titles and other documents made by a person who<br />

has changed his name or his physical identity, or made in his<br />

favour under his former name or his former physical identity,<br />

are deemed made under his new name or under his new<br />

physical identity.<br />

56 The person who has changed his name or his physical<br />

identity may require that such acts, titles and other documents<br />

be drawn up again, or corrected, at his expense, under his new<br />

name or under his new identity.<br />

Section V<br />

Use and protection of name<br />

57 The name of every person is entitled to respect.<br />

58 No person may usurp or use any name other than his<br />

own if confusion or damage can result.


PERSONS 15<br />

59 The holder of the name, his spouse and his relatives in<br />

the direct line may demand that the usurpation cease, and<br />

may claim reparation of the damage caused.<br />

CHAPTER IV<br />

DOMICILE<br />

60 The domicile of a person is at the place of his habitual<br />

residence.<br />

61 A person changes his domicile by establishing his<br />

habitual residence in another place.<br />

62 Any person whose habitual residence cannot be determined<br />

with certainty is presumed to be domiciled at the place<br />

of his last known domicile.<br />

If no previous domicile can be established, the person is<br />

presumed to be domiciled at the place of his birth and, if that<br />

place is unknown, in the judicial district of Quebec.<br />

63 A minor is domiciled with his parents or with his tutor.<br />

A minor whose custody has been the subject of a judicial<br />

decision is domiciled with the person who has custody of him.<br />

When no judicial decision has been rendered with<br />

respect to custody, and the minor's parents have no common<br />

domicile, the minor is domiciled with the person with whom<br />

he habitually resides.<br />

64 A person of major age placed under tutorship is domiciled<br />

with his tutor.<br />

65 Parties to an agreement may elect domicile under that<br />

agreement with a view to its execution or to the exercise of the<br />

actions arising from it.


16 PERSONS<br />

Election of domicile must be express and in writing.<br />

CHAPTER V<br />

ACTS OF CIVIL STATUS<br />

Section I<br />

General provisions<br />

66 The only acts of civil status are acts of birth, acts of<br />

marriage and acts of death.<br />

They contain only what is required by law.<br />

67 The contents of acts of civil status may be disclosed only<br />

in the manner and in the cases provided by law.<br />

68 The Registrar of <strong>Civil</strong> Status is the sole officer of civil<br />

status.<br />

He receives attestations and declarations of birth,<br />

marriage and death.<br />

He immediately signs and dates the declarations he<br />

receives and enters them in the register of civil status.<br />

69 The declaration so signed, dated and entered constitutes<br />

an act of civil status.<br />

If the declaration is made after the prescribed period,<br />

the Registrar may make an investigation or apply for a<br />

judgment before preparing the act.<br />

70 The declaration of civil status indicates the surname,<br />

given names, quality, and domicile of the declarant who signs<br />

it.


PERSONS 17<br />

71 If there is no declaration or if a declaration is incomplete<br />

or contrary to the attestation, the Registrar may draw up the<br />

act on the basis of any information he obtains.<br />

72 The prothonotary or the clerk of the court which has<br />

pronounced a judgment to rectify an act of civil status, a<br />

declaratory judgment of death or of absence, a judgment to<br />

reconstitute or replace an act of civil status, or a judgment<br />

admitting a contestation or disavowal of paternity, an admission<br />

of paternity or maternity, an adoption, a divorce or an<br />

annulment of marriage, sends a copy of the judgment to the<br />

Registrar as soon as it is final.<br />

The Registrar immediately enters it in the register and,<br />

if need be, attaches it to the act affected.<br />

He also enters any decision regarding a change of name<br />

or of physical identity.<br />

73 An adoption outside Quebec by a person domiciled in<br />

Quebec must be declared.<br />

The person adopting sends the Registrar the act of<br />

adoption or a duly certified copy; if it is impossible to obtain<br />

such a document, he sends any other document establishing<br />

the adoption.<br />

The Registrar enters it in the register and draws up an<br />

act of birth.<br />

74 After assuring himself as to the authenticity of the copy<br />

of any act of civil status drawn up outside Quebec but<br />

concerning a person domiciled in Quebec at that time, or of<br />

any decision rendered outside Quebec but likely to change an<br />

act of civil status drawn up in Quebec, the Registrar enters it<br />

in the register as though it was an act drawn up in Quebec<br />

and, if need be, attaches it to the act concerned.<br />

75 The acts mentioned in Articles 73 and 74 which are not


18 PERSONS<br />

drawn up in French or in English must be accompanied by a<br />

translation into either of these languages, certified in Quebec<br />

or at the place of origin.<br />

76 Upon entry of a decision granting a change of name or<br />

of physical identity, a judgment to correct an act of civil<br />

status, a judgment granting adoption or acknowledging<br />

paternity or maternity, or a judgment admitting a contestation<br />

or disavowal of paternity, the Registrar prepares a new act.<br />

signs it and enters it in the register.<br />

This new act does not include the information in the<br />

original act which required modification.<br />

77 Upon entry of a declaratory judgment of death or of a<br />

judgment to reconstitute or replace an act of civil status, the<br />

Registrar prepares the act, signs it and enters it in the register.<br />

In addition to the information required by law, the act<br />

indicates the date of the judgment, the court which rendered it<br />

and the number of the court file.<br />

A copy of the judgment is attached to the act.<br />

These details are included in any certificates issued<br />

subsequently.<br />

78 The Registrar issues certificates of civil status and copies<br />

of acts of civil status.<br />

79 Any person who applies for a certificate may obtain one.<br />

80 Every certificate indicates the registration number of the<br />

act; it is dated and signed by the Registrar.<br />

It contains only the additional information required by<br />

law in each case.


PERSONS 19<br />

81 The certificate may make no reference to any information<br />

which has changed the act or is attached to it.<br />

82 Only a person mentioned in an act of civil status, or who<br />

justifies his interest in it, may obtain a copy of that act.<br />

Except in the cases provided for by law, he may obtain a<br />

copy of the original act which also includes any changes made<br />

to it or any entries attached to it.<br />

The copy bears the date of its issue and is signed by the<br />

Registrar.<br />

Section II<br />

Acts of birth<br />

83 The physician or, if there is no physician, the person<br />

who attends the mother, prepares an attestation of delivery<br />

and immediately transmits a copy of it to the Registrar and to<br />

the persons obliged to declare the birth.<br />

84 An attestation of delivery mentions the date and place<br />

of the birth, the sex of the child, and the surname, given names<br />

and domicile of the mother and of the physician or the person<br />

who attended her.<br />

It is signed by the person who prepares it.<br />

85 The father or the mother or, failing them, the person<br />

who has custody of the child, must declare the birth of that<br />

child to the Registrar within eight days.<br />

The declarant attaches a copy of the attestation of<br />

delivery to his declaration.<br />

86 Any person who finds a newborn child must make a<br />

declaration to that effect within the same period.


20 PERSONS<br />

The presumed date of birth is fixed by the Registrar on<br />

the basis of a medical report.<br />

87 A declaration of birth mentions the surname, given<br />

names and sex of the child, the place and date of his birth, the<br />

surnames, given names and domiciles of the parents, and the<br />

degree of relationship between the declarant and the child.<br />

88 A certificate of birth mentions the surname, given names<br />

and sex of the child, and the date and place of his birth.<br />

89 Copies of acts of birth and of certificates of birth issued<br />

after death or after a declaratory judgment of absence<br />

mention that death or that judgment.<br />

Section III<br />

Acts of marriage<br />

90 The officiant transmits the declaration of a marriage to<br />

the Registrar of <strong>Civil</strong> Status within eight days.<br />

91 The declaration of marriage mentions the surname,<br />

given names and domicile of each consort, their respective<br />

places and dates of birth, the place and date of the marriage,<br />

the surname, given names and capacity of the officiant, the<br />

surname, given names and domicile of the parents of each<br />

consort, and the surname, given names and domicile of each<br />

witness.<br />

If one of the consorts has obtained a dispensation by<br />

reason of age, this fact is mentioned in the declaration which<br />

also indicates the date of the judgment and the number of the<br />

court file.<br />

The declaration is signed by the consorts, the witnesses<br />

and the officiant.<br />

The officiant gives a copy to the consorts.


KfcKSONS 21<br />

92 A certificate of marriage mentions the surname and<br />

given names of each consort, and the date and place of the<br />

marriage.<br />

93 Copies of the act of marriage and of certificates of<br />

marriage issued following annulment of a marriage, or<br />

divorce, or death, or a declaratory judgment of absence must<br />

mention the annulment, divorce, death or judgment.<br />

Section IV<br />

Acts of death<br />

§ - 1 Attestations and declarations of death<br />

94 A physician who establishes that a death has occurred<br />

prepares an attestation of death.<br />

He transmits the attestation to the Registrar without<br />

delay and makes one copy available to the persons who must<br />

declare the death.<br />

If no physician is available, the attestation may be made<br />

by a coroner, a mayor, a minister of religion or, if none of these<br />

is available, by two persons of major age.<br />

95 An attestation of death mentions the date and place of<br />

the death, the surname, given names and sex of the deceased,<br />

and the surname and given names of the person who prepares<br />

the attestation.<br />

It is signed by that person.<br />

96 If the deceased cannot be identified, the attestation of<br />

death gives a description of him and an account of the<br />

circumstances surrounding his death.<br />

97 The spouse of the deceased, a person related to him or,<br />

failing these, any other person capable of identifying him,


22 PERSONS<br />

must declare the death to the Registrar within eight days of<br />

that death, or of the declaratory judgment of death or of<br />

absence, as the case may be.<br />

A copy of the attestation is attached to the declaration.<br />

98 A declaration of death gives the surname and given<br />

names of the deceased and of his parents, his sex, the place<br />

and date of his birth, the place of his last domicile, the place<br />

and date of his death and, where applicable, the surname and<br />

given names of the surviving spouse.<br />

It also indicates the relationship between the declarant<br />

and the deceased.<br />

99 If the date of death is not known, the Registrar fixes the<br />

presumed date on the basis of a medical report.<br />

If the place of death is not known, the death is presumed<br />

to have occurred where the body was found.<br />

100 The Registrar mentions the death or absence, as the case<br />

may be, in a schedule to the deceased's acts of birth and of<br />

marriage.<br />

101 A certificate of death gives the surname, given names<br />

and sex of the deceased and the date and place of his death.<br />

If a certificate is issued following a declaratory judgment<br />

of death, it also includes the information required under<br />

Article 77.<br />

§ - 2 Declaratory judgments of death<br />

102 The death of a person who has died in Quebec or was<br />

domiciled there must be judicially declared when it is impossible<br />

to draw up an attestation of death and his death can be<br />

held to be certain.


PERSONS 23<br />

103 The judgment mentions the surname, given names and<br />

sex of the deceased, the place of his last domicile, and the<br />

place of his death, if it is known.<br />

It fixes the date of death, taking into account the<br />

presumptions drawn from the circumstances or, failing such<br />

circumstances, it fixes as the date of death the day when the<br />

deceased disappeared.<br />

104 A declaratory judgment of death terminates the marriage<br />

of a person declared to have died, and dissolves his<br />

matrimonial regime.<br />

105 If a person whose death has been judicially declared<br />

reappears, the court, on motion, orders revocation of the<br />

declaratory judgment and cancellation of the entries to which<br />

the revoked judgment gave rise.<br />

106 A person who reappears takes back his property in the<br />

condition in which it is, what remains of the price of any of his<br />

property which has been alienated, or any property acquired<br />

with the price.<br />

107 Any payment made subsequent to a death which has<br />

been judicially declared, but before the return of the person<br />

declared deceased, is valid and constitutes valid discharge.<br />

Section V<br />

Correction and rectification of acts of civil status<br />

108 The Registrar corrects clerical errors in any act.<br />

In other cases, rectification is obtained, upon motion, in<br />

the manner prescribed in the <strong>Code</strong> of <strong>Civil</strong> Procedure.


24 PERSONS<br />

Section VI<br />

Judgments to reconstitute and replace acts of civil status<br />

109 An act which has been lost or destroyed, or a copy of<br />

which cannot be obtained, may be reconstituted following a<br />

judgment, even if the act was received or drawn up outside<br />

Quebec.<br />

110 If no act exists respecting a birth, marriage or death, the<br />

act may be judicially supplied, even if the birth, marriage or<br />

death occurs outside Quebec.<br />

CHAPTER VI<br />

MAJORITY AND MINORITY<br />

Section I<br />

Majority<br />

111 The age of majority is eighteen years.<br />

Majority is also attained by marriage before that age.<br />

112 Upon reaching majority, every person is fully capable of<br />

performing all acts of civil life, subject to express provision of<br />

law.<br />

Section II<br />

Minority<br />

113 A minor is capable of contracting, subject to express<br />

provision of law.<br />

114 An act performed alone by a minor may be annulled, or


PERSONS 25<br />

the obligations which derive from it may be reduced, on his<br />

application, if he suffers damage.<br />

A minor who has become of major age may confirm the<br />

act, subject to Article 37 of the Book on Obligations.<br />

115 A mere verbal declaration by a minor to the effect that<br />

he is of major age does not deprive him of his recourse in<br />

nullity or reduction.<br />

116 The minor may not exercise any recourse in nullity or<br />

reduction when the damage results from a casual or an<br />

unforeseen event.<br />

117 A minor is responsible for all damage which results from<br />

an offence or a quasi-offence committed by him.<br />

118 A minor is deemed of major age for the purposes of his<br />

business, his craft, his profession or his employment.<br />

119 A minor authorized to marry is deemed of major age for<br />

the purposes of his marriage contract.<br />

The same applies to a minor who will be of major age on<br />

his wedding day.<br />

120 A minor is represented, in any judicial proceedings, by<br />

the person who exercises parental authority, subject to express<br />

provision of law.<br />

However, with the authorization of the judge, a minor<br />

may institute alone an action relating to his status.<br />

A minor may himself invoke, in his defense, any<br />

irregularity resulting from lack of representation.<br />

121 A minor fourteen years old may consent alone to receive<br />

any treatment required by his state of health.


26 PERSONS<br />

Where such a minor is sheltered for more than twelve<br />

hours, or where treatment is prolonged, the physician or the<br />

hospital centre must inform the person who exercises parental<br />

authority.<br />

122 When a minor is under fourteen years of age, his father,<br />

mother or tutor must consent to the care required.<br />

However, if the consent cannot be obtained, or if refusal<br />

is not justified in the interest of the child, a judge may<br />

authorize the care or treatment.<br />

123 A minor under sixteen years of age may be given the<br />

medical or surgical care which his condition requires, even<br />

though he refuses it, provided the person who exercises<br />

parental authority gives his consent.<br />

124 When the life of a minor is in danger, no consent is<br />

necessary for any medical or surgical care.<br />

CHAPTER VII<br />

PROTECTED PERSONS<br />

Section I<br />

General provisions<br />

125 Tutorship is intended to ensure protection of the person<br />

and of the patrimony, or of the patrimony only.<br />

126 Tutorship to minors is legal, dative or testamentary.<br />

127 Tutorship to protected persons of major age and to<br />

absentees is dative.<br />

The same applies to curatorship to persons of major age.


PERSONS 27<br />

128 There are two kinds of legal tutorship: that exercised by<br />

parents over the property of their minor children, and that<br />

provided for by law for specific purposes.<br />

129 Tutorship to the person is a personal office; every<br />

person, whether citizen or alien, may act as a tutor, subject to<br />

express provision of law.<br />

130 Tutorship is not transferred to the heirs of the tutor.<br />

The heirs are responsible only for the tutor's administration<br />

and, if they are of major age, they must continue the<br />

administration until a new tutor is appointed.<br />

131 Legal tutorship by parents is a gratuitous office.<br />

132 A dative or a testamentary tutor may receive remuneration<br />

fixed by the court or by the testator, taking into account<br />

the expenses of the tutorship.<br />

133 The following persons may not act as tutors:<br />

1. a minor, unless he is the father or mother of the child;<br />

2. a person of major age under tutorship or under<br />

curatorship;<br />

3. a person who is, or whose spouse is, engaged in a dispute<br />

involving the status, patrimony, or a significant portion<br />

of the property of the protected person;<br />

4. a person confined to a penal institution.<br />

134 No person may be compelled to act as a dative or a<br />

testamentary tutor.<br />

135 A married person may not act as a dative or a testamentary<br />

tutor to the person of a minor, unless he obtains the<br />

consent of his spouse, provided, however, these consorts are<br />

living together.


28 PERSONS<br />

136 Tutorship is based at the domicile of the minor or of the<br />

person of major age under tutorship.<br />

137 The court or the testator may appoint either one person,<br />

or consorts living together, as tutor or tutors to the person.<br />

138 A tutor to the person is also tutor to the property.<br />

However, the judge or the testator may appoint one<br />

tutor to the person, and one or more tutors to the property.<br />

139 Tutorship to the property may be referred by the court,<br />

or entrusted by the testator, to an organization specializing in<br />

administration of the property of others.<br />

140 A tutor may delegate the administration of the protected<br />

person's property in accordance with the Title on Administration<br />

of the Property of Others.<br />

He may also delegate it to an organization specializing<br />

in administration of the property of others.<br />

141 The tutor to the person has the care of the protected<br />

person.<br />

He represents him in the exercise of all his civil rights,<br />

and in all judicial proceedings, subject to express provision of<br />

law.<br />

142 When several tutors are appointed to the property of a<br />

protected person, they perform their respective duties independently<br />

of each other with regard to the property entrusted<br />

to them.<br />

143 The tutor to the property makes an annual report on his<br />

administration to the tutor to the person.<br />

144 The tutor deducts from the nrooertv he administers all<br />

amounts necessary for the n


PERSONS 29<br />

If he does not do so, any interested person may apply to<br />

the court to determine the amount to be deducted.<br />

145 The tutor to the person agrees with the tutor to the<br />

property as to the annual amount he needs to perform his<br />

duties, and also as to payment of that amount.<br />

If they cannot agree, the court determines the amount<br />

necessary, and the conditions of payment.<br />

146 With respect to the property of a protected person, the<br />

tutor to the property has the powers and obligations of an<br />

administrator entrusted with full administration.<br />

147 All property which has been given, bequeathed or<br />

judicially assigned to a protected person, on express condition<br />

that it be administered by a third party, is exempt from<br />

tutorship.<br />

148 The Public Curator supervises the administration of<br />

property given, bequeathed or judicially assigned to a protected<br />

person and exempted from administration by the tutor.<br />

149 The protected person retains the administration of the<br />

proceeds of his own work.<br />

150 Whenever the protected person's interests are in conflict<br />

with those of his tutor, the court, on motion by any interested<br />

person, may appoint an ad hoc tutor to the protected person.<br />

The Public Curator may be appointed ad hoc tutor.<br />

151 In addition to the causes for extinction provided for in<br />

the Title on Administration of the Property of Others, the<br />

functions of dative and testamentary tutors terminate when:<br />

1. the protected person dies;<br />

2. the minor becomes of major age;<br />

3. the protected person is adopted;


30 PERSONS<br />

4. the tutor is replaced or dismissed.<br />

152 In addition to the causes provided for in sub-paragraphs<br />

1, 2 and 3 of the preceding article, legal tutorship of the parents<br />

terminates upon:<br />

1. deprivation of parental authority;<br />

2. judicial withdrawal of tutorship;<br />

3. commencement of dative tutorship.<br />

153 A tutor may apply to be relieved of his duties at any<br />

time, provided his application is not made at a time detrimental<br />

to the interests of the protected person.<br />

He remains in office until a new tutor is appointed.<br />

154 A tutor who becomes unable to perform his duties may<br />

be replaced.<br />

155 Any interested person, including the Public Curator,<br />

may apply to the court for replacement of a dative or a<br />

testamentary tutor.<br />

The application is made in accordance with the <strong>Code</strong> of<br />

<strong>Civil</strong> Procedure.<br />

156 A dative or testamentary tutor who neglects his duties<br />

toward a protected person, or mistreats him. mav be<br />

dismissed.<br />

157 Unless otherwise ordered by the court, a dative or<br />

testamentary tutor retains his authority over the protected<br />

person and over the property of that person throughout the<br />

proceedings for dismissal or replacement.<br />

158 Unless the court decides otherwise, the father or the<br />

mother retains power over the child's property during proceedings<br />

lor withdrawal of legal tutorship to the property.


PERSONS 31<br />

159 In the cases mentioned in Articles 157 and 158, the<br />

court, from the time of application, may appoint the Public<br />

Curator to act as tutor.<br />

160 The judgment ordering dismissal or replacement of a<br />

tutor orders him to render an account and appoints a new<br />

tutor.<br />

If no person is proposed for the office of tutor, or if the<br />

person proposed does not accept the office, the court appoints<br />

the Public Curator.<br />

The court rules on the custody of the person, should the<br />

occasion arise.<br />

161 The judgment has no effect with regard to third parties<br />

until it has been filed in the central register of protected<br />

persons.<br />

162 The Title on Administration of the Property of Others<br />

applies to this chapter when it is not incompatible.<br />

Section II<br />

Parents' legal tutorship to the property of their minor<br />

children<br />

163 Parents, even those of minor age, are of right legal tutors<br />

to their minor children's property.<br />

164 Parents administer their minor children's property<br />

together, unless either of them has been awarded custody of<br />

them by the court, in which case that parent alone fulfils the<br />

duties of tutor to the property, until the court decides<br />

otherwise.<br />

165 If either parent dies, or is unable to express his wishes or<br />

cannot express them within the time required, the other parent<br />

exercises legal tutorship.


32 PERSONS<br />

166 Either parent may confer on the other a mandate to<br />

represent him in the exercise of legal tutorship.<br />

With regard to third parties in good faith, this mandate<br />

is presumed.<br />

167 In the absence of a decision to the contrary, once the<br />

court has restored to a parent his parental authority or any<br />

attributes of that authority which have been withdrawn, that<br />

parent recovers legal tutorship, even if dative tutorship has<br />

already begun.<br />

Section III<br />

Dative tutorship<br />

168 Dative tutorship to minors is conferred by the court, in<br />

accordance with the <strong>Code</strong> of <strong>Civil</strong> Procedure, when:<br />

1. both parents have died without appointing a testamentary<br />

tutor, or they cannot exercise parental authority;<br />

2. the parents have been deprived of parental authority;<br />

3. the parents have seen their legal tutorship to the child's<br />

property withdrawn.<br />

169 Any interested person, including the Public Curator,<br />

may apply by motion for commencement of dative tutorship;<br />

he may submit the name of any person, or the names of<br />

consorts living together, who are suited to act as tutor or tutors<br />

and who agree to do so.<br />

170 A dative tutor assumes office on the day he is appointed.


PERSONS 33<br />

Section IV<br />

Testamentary tutorship<br />

171 Tutorship is testamentary when the tutor is appointed in<br />

a will by the surviving parent who was exercising parental<br />

authority on the day of his death.<br />

172 When a testator entrusts several persons, other than<br />

consorts living together, with tutorship to the person, the<br />

tutorship is without effect.<br />

The court which appoints a dative tutor, however, takes<br />

the wishes of the testator into account.<br />

173 A testator may provide in his will for the replacement of<br />

the tutor he appoints.<br />

174 An heir, legatee or executor may be appointed tutor to<br />

the person and to the property.<br />

175 The testamentary tutor assumes office when he becomes<br />

aware of his appointment.<br />

If he has not refused the tutorship within two months<br />

after he becomes aware of his appointment, he is presumed to<br />

have accepted it.<br />

176 If a testamentary tutor refuses to accept the tutorship, he<br />

must do so by a notarial deed en minute or by a judicial<br />

declaration, recorded by the court.<br />

A copy of the deed of refusal must be sent without delay<br />

by the notary or the prothonotary, as the case may be, for<br />

filing in the central register of protected persons.<br />

177 A testamentary tutor who agrees so to act must, within<br />

thirty days after the holograph will or the will before witnesses<br />

is probated, or within thirty days following the death if the


34 PERSONS<br />

will is in authentic form, send the Public Curator a copy of the<br />

will appointing him, for filing in the central register of<br />

protected persons.<br />

178 When a testamentary tutor refuses the tutorship and the<br />

testator has appointed a substitute, the person who received<br />

the refusal must so advise the substitute.<br />

If the substitute does not refuse the tutorship within<br />

thirty days, he is presumed to have accepted it on the day he<br />

became aware of his appointment.<br />

179 If the testamentary tutor or his substitute has refused the<br />

tutorship within the prescribed period, a dative tutor may be<br />

appointed to the minor.<br />

Section V<br />

Protection of persons of major age<br />

§ - 1 Tutorship and curatorship to persons of major age<br />

180 A person of major age whose mental faculties are<br />

impaired or who is physically incapable of expressing his will<br />

may be placed under tutorship or under curatorship.<br />

181 A person of major age is placed under tutorship when,<br />

for any reason mentioned in the preceding article, he is<br />

incapable of acting for himself and requires representation in<br />

the exercise of his civil rights.<br />

182 A person of major age is placed under curatorship when,<br />

for any reason mentioned in Article 180, he is incapable of<br />

acting without help and requires assistance in the exercise of<br />

his civil rights.<br />

183 When the court orders a person placed under curatorship,<br />

it may authorize him to perform alone certain acts which<br />

it determines.


PERSONS 35<br />

184 The court, on motion by any interested person, including<br />

the Public Curator, decides on the commencement of a<br />

regime of protection.<br />

185 The judgment ordering commencement of a regime of<br />

protection stipulates the regime under which the protected<br />

person is placed, and appoints a tutor or a curator.<br />

186 The court, any time before judgment, may upon motion<br />

appoint a person to administer provisionally the property of<br />

the person to be protected.<br />

187 The provisional administrator is entrusted with the<br />

simple administration of the property of the person to be<br />

protected.<br />

188 A judgment placing a person of major age under<br />

protection may be revised by the court, on motion by any<br />

interested person including the Public Curator in the event of<br />

recovery, improvement or deterioration of the protected<br />

person's physical or mental health, in compliance with the<br />

formalities for commencement of the regime.<br />

189 A person of major age under tutorship is incapable of<br />

contracting, subject to express provision of law.<br />

190 An act performed alone by a person of major age under<br />

tutorship may be declared null or the obligations which derive<br />

from it may be reduced, on his application, without it being<br />

necessary to prove damage.<br />

191 All acts performed before a person of major age is<br />

placed under tutorship are subject to the same nullity as those<br />

performed after he is so placed, provided the grounds for<br />

placing him under protection notoriously existed when the<br />

acts were performed.<br />

192 A person of major age under curatorship is capable of<br />

contracting, subject to express provision of law.


36 PERSONS<br />

193 An act performed alone by a person of major age under<br />

curatorship may be declared null or the obligations which<br />

derive from it may be reduced, on his application, as in the<br />

case of a minor, if he suffers damage.<br />

194 Subject to Article 37 of the Book on Obligations, he may<br />

confirm the contract after the curatorship has terminated.<br />

195 A person of major age under curatorship may institute<br />

alone proceedings concerning his status, with the authorization<br />

of the judge.<br />

196 A curator assumes office on the day he is appointed.<br />

He is appointed, and may be replaced or dismissed,<br />

under the same conditions as a tutor.<br />

§ - 2 Tutorship to sick persons<br />

197 When a sick person who has no tutor is unable to act for<br />

himself for a reason given in Article 180, and requires<br />

representation in the exercise of his civil rights, the director of<br />

professional services of the hospital centre where he is treated<br />

must immediately advise the Public Curator.<br />

198 The sick person's condition is attested to by a certificate<br />

from the director of professional services, following a reasoned<br />

recommendation in writing from the psychiatrist or specialist,<br />

as the case may be, who examined the sick person.<br />

The director sends the certificate, and any other document<br />

or information indicated by government regulation, to<br />

the Public Curator.<br />

199 As soon as the Public Curator receives the certificate, he<br />

must ask the court, by motion, to appoint him tutor to the sick<br />

person.<br />

200 The Public Curator has the powers and obligations of a


PERSONS 37<br />

tutor with regard to the person and property of the sick person,<br />

subject to express provision of law.<br />

If a tutor to the person only is appointed, the Public<br />

Curator continues to act as tutor to the property.<br />

201 The sick person retains full administration of the<br />

proceeds of the work done by him during the tutorship.<br />

202 The Public Curator does not have custody of the sick<br />

person.<br />

The director of professional services of the centre where<br />

the sick person is hospitalized has custody of that person.<br />

203 The powers of the Public Curator as tutor to a sick<br />

person cease of right:<br />

1. when a judgment appointing another tutor or a curator<br />

to the sick person is served on the Public Curator;<br />

2. when the court renders a judgment declaring that the<br />

sick person is no longer incapable.<br />

204 The Public Curator continues his administration after<br />

the sick person dies, until the succession is accepted.<br />

§ - 3 Tutorship to absentees<br />

205 An absentee, in this <strong>Code</strong>, is a person domiciled in<br />

Quebec who has disappeared without anyone knowing<br />

whether he is still living.<br />

206 A tutor may be appointed to an absentee who has rights<br />

to be exercised or property to be administered, if he has no<br />

attorney or if his attorney is unknown or is unable to act.<br />

The court may appoint the Public Curator.<br />

207 The tutor represents the absentee.


38 PERSONS<br />

He has, with respect to the property of the absentee, the<br />

powers and obligations of a tutor to a minor.<br />

208 Tutorship to an absentee terminates:<br />

1. when he returns;<br />

2. when he confers a power of attorney on any person;<br />

3. by declaratory judgment of absence;<br />

4. upon proof of his death.<br />

209 When an absentee has been absent for seven consecutive<br />

years, any interested person, including the Public Curator,<br />

may obtain a declaratory judgment of absence.<br />

210 An absentee is presumed dead from the time of the<br />

declaratory judgment of absence.<br />

The judgment terminates the marriage of the absentee,<br />

dissolves his matrimonial regime and gives his heirs<br />

possession.<br />

211 After the declaratory judgment of absence is rendered,<br />

any person who has claims against an absentee exercises them<br />

against his heirs.<br />

The heirs are bound only to the extent of their<br />

emolument.<br />

212 If the date of an absentee's death is proven after a<br />

declaratory judgment of absence is rendered, the succession<br />

opens on that date.<br />

The persons who have possession of the absentee's<br />

property must restore to the heirs qualified to inherit at that<br />

time the property in the condition in which it is, what remains<br />

of the price of any property which has been alienated, or any<br />

property acquired with the price.


PERSONS 39<br />

213 If the absentee is proven to have died on a date prior to<br />

that of the declaratory judgment of absence, his matrimonial<br />

regime is dissolved on the date of his death.<br />

214 When an absentee returns, the court, on motion, orders<br />

revocation of the declaratory judgment of absence and the<br />

cancellation of any entries to which the revoked judgment<br />

gave rise.<br />

215 The heirs of the absentee, or the absentee himself if he<br />

returns, recover the property in the condition in which it is,<br />

what remains of the price of any property which has been<br />

alienated, or any property acquired with the price.<br />

216 Any payment made as a result of a declaratory judgment<br />

of absence is valid and constitutes valid discharge.<br />

217 If an heir who has been given possession learns that the<br />

absentee is alive, he retains his rights over the property and<br />

acquires the fruits as long as the absentee does not reappear or<br />

no action has been taken on his behalf.<br />

218 Any person who claims a right accruing to an absentee<br />

must prove that the absentee was living when the right<br />

accrued.<br />

219 If a succession to which an absentee is called opens, it<br />

devolves exclusively to those with whom he would have been<br />

entitled to inherit, or to those who would have inherited in his<br />

stead.<br />

220 Articles 218 and 219 apply without prejudice to any<br />

action for the recovery of an inheritance or any other right,<br />

which belong to the absentee or to his heirs and legal<br />

representatives and which are extinguished only by the lapse<br />

of time required for prescription.


40 PERSONS<br />

Section VI<br />

Measures of supervision applying to tutorship<br />

221 The clerk of the court or the prothonotary immediately<br />

sends the Public Curator a copy of any judgment respecting<br />

the pecuniary interests of a person under tutorship.<br />

222 Any person who intends to enter into a settlement with a<br />

person under tutorship or with that person's tutor must<br />

immediately so advise the Public Curator.<br />

The Public Curator may intervene in the settlement to<br />

ensure that the pecuniary interests of the person under<br />

tutorship are respected.<br />

223 No payment may be made, nor property delivered, to a<br />

person under tutorship or to his tutor, except the proceeds of<br />

his work and customary presents, without prior authorization<br />

from the Public Curator.<br />

224 When tutorship to the property begins, the tutor makes<br />

an inventory of the property subject to the tutorship and<br />

furnishes a surety or another security considered acceptable<br />

by the Public Curator.<br />

225 A tutor must also provide such a surety or another<br />

security before he is given possession of any property payable<br />

to a person under tutorship.<br />

226 If the security is not provided within the period of time<br />

determined by the Public Curator, he may require that the<br />

property be handed over to him, and he administers it until<br />

the conditions provided for in the preceding article are met.<br />

227 No security is required when the total value of the<br />

property administered by the tutor is less than three thousand<br />

dollars or when the property payable to the person under


PERSONS 41<br />

tutorship consists of the proceeds of his work or constitutes a<br />

customary present.<br />

228 The tutor, executor or trustee, as the case may be, makes<br />

an inventory of the property which devolves to a person under<br />

tutorship by gift, succession or will, in accordance with<br />

Articles 913 and following of the <strong>Code</strong> of <strong>Civil</strong> Procedure,<br />

account being taken of Article 343 of the Book on Succession.<br />

The inventory must be made within six months following<br />

the death or within thirty days following the gift, as the<br />

case may be.<br />

A copy of the inventory must be sent to the Public<br />

Curator.<br />

229 The obligation to make inventory is imperative.<br />

230 The tutor submits annual financial statements to the<br />

Public Curator, subject to any exemption granted by the<br />

Public Curator, in accordance with the law.<br />

A minor who has reached the age of sixteen may<br />

demand a copy of the statements from his tutor.<br />

231 The financial statement is prepared by a chartered<br />

accountant, in the cases provided by law.<br />

The cost of the audit is borne by the person under<br />

tutorship.<br />

232 The tutor who alienates property worth five thousand<br />

dollars or more must first obtain an assessment certificate,<br />

unless that property consists of shares of stock quoted and<br />

negotiated on the stock market.<br />

The tutor must file the certificate when submitting the<br />

annual financial statements.


42 PERSONS<br />

Juridical acts which are related according to their<br />

nature, their purpose or the time they are entered into,<br />

constitute one and the same act.<br />

233 The Public Curator may audit the tutor's books.<br />

234 The Public Curator may require any document and any<br />

explanation respecting the financial statements sent to him by<br />

a tutor.<br />

235 The tutor must always submit a copy of the final<br />

statement to the Public Curator.<br />

236 The Public Curator may apply for the dismissal of a<br />

tutor who does not execute his obligations.<br />

237 The final statement may be contested in the manner<br />

provided in the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

238 A tutor who infringes this section, except Articles 225<br />

and 226, is liable to a fine of not less than fifty dollars nor<br />

more than one thousand dollars.<br />

If the offence is repeated, he is liable to a fine of not less<br />

than five hundred dollars nor more than five thousand dollars,<br />

or to imprisonment for six months, or to both.<br />

239 Every person who is required to obtain authorization<br />

from the Public Curator before remitting property which<br />

belongs to a person under tutorship and who fails to obtain<br />

such authorization, is liable to a fine of not less than fifty<br />

dollars nor more than five thousand dollars.<br />

240 Every person who enters into a settlement with a person<br />

under tutorship and has failed to so advise the Public Curator<br />

is liable to a fine of not less than fifty dollars nor more than<br />

five thousand dollars.


PERSONS 43<br />

TITLE THREE<br />

LEGAL PERSONS<br />

CHAPTER I<br />

GENERAL PROVISIONS<br />

241 Legal personality is conferred according to the conditions<br />

provided by law.<br />

242 The deed constituting a legal person must be registered<br />

according to law.<br />

If the deed is not registered, the legal person cannot sue<br />

and its personality cannot be set up against third parties.<br />

243 A legal person has a name which is given to it at its<br />

creation.<br />

This name may be changed according to the procedure<br />

established by law or, failing that, by the statutes of the legal<br />

person.<br />

244 The legal person exercises its rights and executes its<br />

obligations under that name.<br />

Subject to the preceding paragraph, a legal person may<br />

in particular operate an enterprise under a name other than its<br />

own name.<br />

245 The domicile of a legal person is at its head office or, if it<br />

has no head office, at the place of its principal establishment.<br />

246 The internal affairs, the activities and undertakings of a<br />

legal person are governed by law or, in the absence of any<br />

legal provision, by its statutes or by-laws.


44 PERSONS<br />

247 The directors of the legal person act on its behalf in all<br />

matters.<br />

They have all the rights, powers and duties of an<br />

administrator of the property of others entrusted with full<br />

administration.<br />

248 The statutes of a legal person may restrict the objects<br />

pursued by that person, and its sphere of activity, or provide<br />

modalities relating to their exercise.<br />

No person may invoke the nullity of an act performed<br />

by a legal person on the sole ground that the act derogates<br />

from the statutes of that person or its by-laws, subject to the<br />

provisions of law applicable to the publication of real rights.<br />

249 The members of a legal person are personally and<br />

jointly liable for the debts of that person, subject to express<br />

provision of law.<br />

250 In the event of fraud, even when the law restricts the<br />

personal responsibility of the founders, members or directors<br />

of a legal person, the court, on application by any interested<br />

person, may charge the founders, members or directors, or any<br />

of them, with the debts of the legal person, to an amount<br />

deemed equitable.<br />

251 The members cannot be made responsible for the debts<br />

unless it is proven that they participated in the act reproached<br />

or derived personal benefit from it.<br />

The founders and directors are exempted from that<br />

responsibility if they prove that they did not participate in the<br />

act reproached and did not derive benefit from it.<br />

252 No legal person may act as:<br />

1. a tutor to the person;<br />

2. a tutor to the property or a curator, an executor, a


PERSONS 45<br />

judicial sequestrator or a trustee, subject to the provisions<br />

of law;<br />

3. a juror.<br />

253 Meetings of the members of a legal person are held at<br />

the place of its domicile or at the place determined in its<br />

statutes or by-laws.<br />

254 The directors must call an annual meeting of the<br />

members within eighteen months after its creation, and<br />

subsequently within eighteen months after the preceding<br />

annual meeting.<br />

time.<br />

They may call a special meeting of the members at any<br />

255 Notice of the date and place of a meeting of the<br />

members must be sent to each member at least twenty-one<br />

days before that meeting.<br />

This notice must list the matters to be dealt with at the<br />

meeting.<br />

Ordinary business of annual meetings, such as the<br />

examination of financial statements, the auditor's report, the<br />

election of directors and the appointment of the auditor, need<br />

not be mentioned.<br />

256 The directors must keep an alphabetical list of the<br />

members and allow the members and the creditors of the legal<br />

person to consult that list during normal business hours.<br />

257 A majority of the members constitutes a quorum at any<br />

meeting of these members, unless there is provision to the<br />

contrary in the statutes or by-laws.<br />

258 If there is a quorum when a meeting opens, the members<br />

present may carry out the business of that meeting, unless


46 PERSONS<br />

otherwise provided in the statutes or by-laws, regardless of<br />

whether or not there is a quorum throughout the meeting.<br />

259 If there is no quorum when a meeting opens, the<br />

members present may adjourn it to a date and place of their<br />

choice, but they may not deal with any other business.<br />

If there is no quorum at the subsequent meeting, the<br />

members present may deal with the business on the agenda of<br />

the preceding meeting, unless otherwise provided in the<br />

statutes or by-laws.<br />

260 If the legal person is made up of one member only, that<br />

member constitutes a meeting.<br />

261 Members vote by head-count, by a show of hands or,<br />

upon the request of any member, by secret ballot.<br />

262 A written resolution signed by all members has the same<br />

value as one adopted in a meeting of members, and as one<br />

which meets the requirements of this <strong>Code</strong> respecting meetings<br />

of the members.<br />

A copy of the resolution must be kept with the minutes<br />

of the meetings of members.<br />

263 Three members may request the directors to call a<br />

meeting of the members specifying, in a written notice, the<br />

business to be dealt with during that meeting.<br />

If the directors fail to call a meeting within twenty-one<br />

days after receipt of this notice, any member who signed the<br />

notice may call one.<br />

The costs of calling and holding a meeting called in<br />

accordance with the preceding paragraph are borne by the<br />

legal person, unless the members object to this by resolution<br />

during the meeting.


PERSONS 47<br />

264 The notice calling an annual meeting of the members<br />

must be accompanied by a balance sheet, a statement of<br />

revenue and expenditure for the previous fiscal year, a<br />

statement of the debts and claims and, where applicable, any<br />

draft resolution amending the statutes of the legal person or its<br />

undertaking.<br />

265 Any member may delegate his right to vote to a<br />

mandatary.<br />

The mandate must be in writing.<br />

266 A legal person may exist in perpetuity.<br />

267 In addition to the grounds provided by law, a legal<br />

person is dissolved by:<br />

1. the expiry of the term or the fulfilment of the condition<br />

attached at the time of its creation;<br />

2. the accomplishment of the object for which it was<br />

created, or the impossibility of accomplishing that<br />

object;<br />

3. the consent of all the members;<br />

4. the effect of any cause provided in the statutes or bylaws.<br />

268 In the absence of any express provision in the law or in<br />

the statutes or by-laws of a legal person which has been<br />

dissolved, that person is liquidated under the Winding-up Act,<br />

as far as possible.<br />

The provisions of this article apply, however, only if the<br />

legal person was solvent when it was dissolved. If it was not<br />

solvent, the provisions governing bankruptcy apply.<br />

269 The juridical personality of a legal person continues to<br />

exist until that person is liquidated.<br />

270 Subject to the rights of creditors and third parties, and


48 PERSONS<br />

failing express provision in the law or in the statutes or bylaws<br />

of a legal person concerning the devolution of its<br />

property, the rules governing irregular succession apply.<br />

CHAPTER II<br />

CORPORATIONS<br />

271 A corporation is a legal person which exists in perpetuity<br />

subject to the provisions of the law or of the statutes governing<br />

it and, notwithstanding Article 249, whose members are not<br />

personally responsible for its acts, omissions or debts.<br />

272 A corporation may be created only in accordance with<br />

the formalities prescribed by law.<br />

273 A corporation may have only one member.<br />

274 A member of a corporation is personally responsible for<br />

anything he has promised to contribute.<br />

He may also be personally responsible as a director of<br />

the corporation.<br />

275 The internal affairs and activities of a corporation are<br />

managed exclusively by a board of directors, subject, where<br />

allowed, to any unanimous agreement of the members of the<br />

corporation.<br />

276 The board of directors is made up of at least three<br />

directors.<br />

If there are fewer than three members in the corporation,<br />

however, its board of directors may be made up of only as<br />

many directors as it has members.<br />

277 The directors of a corporation, who make up the board<br />

of directors, are appointed by its members according to the<br />

procedure laid down by law, by the statutes or by the by-laws.


PERSONS 49<br />

The directors need not be members of the corporation.<br />

278 No person may be a director of a corporation if he is:<br />

1. a minor;<br />

2. a person of major age under tutorship or curatorship;<br />

3. notoriously insolvent, or bankrupt.<br />

279 An officer of a bankrupt corporation may not become or<br />

remain a director of another corporation, unless the court<br />

authorizes him to do so.<br />

280 A legal person may be a director of a corporation.<br />

When appointed, it must appoint a permanent representative<br />

who is subject to the same conditions and obligations<br />

and who incurs the same responsibility as if he were a<br />

director in his own right, without prejudice to the solidary<br />

responsibility of the legal person whom he represents.<br />

The legal person which dismisses its representative must<br />

see to his replacement without delay.<br />

281 On motion by any interested person, the court may<br />

forbid any of the following to act as a director of a<br />

corporation:<br />

1. a person found guilty of an indictable offence involving<br />

fraud or dishonesty, whether in relation to a corporation<br />

or not;<br />

2. a person found guilty of an offence, in relation to the<br />

formation, administration or liquidation of a<br />

corporation;<br />

3. a person who repeatedly fails to comply with the law<br />

governing corporations or to execute his obligations as<br />

an administrator of property belonging to another;<br />

4. a person whose behaviour with regard to the administration<br />

of a corporation is dishonest or imprudent.


50 PERSONS<br />

282 The interdiction ordered by the court may not extend for<br />

more than five years after the last act with which the person<br />

concerned is reproached.<br />

If that person has been sentenced to imprisonment,<br />

however, the interdiction may be extended, but not beyond<br />

five years after the term of imprisonment.<br />

283 The court which issued the order for interdiction may<br />

remove the interdiction, on motion by the person concerned<br />

and on conditions considered appropriate.<br />

284 Any person who infringes an order rendered under<br />

Article 281 commits an offence punishable, on summary<br />

conviction, by a fine of not more than five thousand dollars, or<br />

by imprisonment for not more than six months, or by both.<br />

285 No person may be appointed a director of a corporation<br />

without his consent.<br />

No person may imply that another person will be<br />

appointed a director or will act in that capacity without the<br />

consent of that person.<br />

286 A director of a corporation is appointed for not more<br />

than three years.<br />

The mandate is renewable.<br />

287 Not all the directors appointed at the same meeting<br />

need hold office during the same period.<br />

288 A director appointed for an indeterminate period ceases<br />

to hold office at the close of the first meeting of members<br />

which follows his appointment.<br />

289 Notwithstanding Articles 286 and 288, if no director is<br />

appointed at the annual meeting of members, the directors in<br />

office continue to act until their successors are appointed.


PERSONS 51<br />

290 Even if the meeting of members does not appoint the<br />

number of directors required by the statutes or the by-laws,<br />

those directors who are appointed or who remain in office may<br />

act if the quorum required is attained.<br />

291 An act performed by a director or an officer of a<br />

corporation is valid, despite any irregularity in his appointment<br />

or his election or absence of quality.<br />

292 Subject to the law, the statutes or the by-laws of the<br />

corporation, the board of directors may create positions for<br />

officers of the corporation and delegate to those officers the<br />

exercise of powers respecting the internal affairs and the<br />

activities of the corporation.<br />

A director may be appointed to such a position.<br />

The same person may hold more than one position.<br />

CHAPTER III<br />

LEGAL PERSONS IN PUBLIC LAW<br />

293 Public legal persons, except the Crown, are subject to<br />

this <strong>Code</strong> and to all laws applicable to persons, except as<br />

otherwise expressly provided by law.<br />

The same is true of organizations, partnerships, and<br />

agents or mandataries of the Crown.<br />

294 The Crown must execute its legal and contractual<br />

obligations in the same manner as a person of major age.<br />

The provisions of this <strong>Code</strong> and of the laws governing<br />

responsibility of persons apply to the civil responsibility of the<br />

Crown, subject to this chapter.<br />

295 The term '' servant of the Crown'' includes in particular:


52 PERSONS<br />

1. a member of the Executive Council;<br />

2. a member of the civil service within the meaning of<br />

Section 2 of the <strong>Civil</strong> Service Act;<br />

3. a cadet and a member of the Quebec Police Force;<br />

4. an employee.<br />

It does not include a contractor, a corporation which is a<br />

mandatary or agent of the Crown, or the employees of such a<br />

corporation.<br />

296 Notwithstanding Article 294, the Crown is not responsible<br />

for any damage caused when a member of the Executive<br />

Council exercises, or fails to exercise, discretionary power.<br />

297 A servant of a public legal person or of the Crown does<br />

not cease to act in the performance of his duties merely<br />

because he commits an illegal or unauthorized act. or one<br />

which is ultra vires, or because he acts as a peace officer.<br />

298 A recourse in damages against a public legal person,<br />

including the Crown, must be preceded by a notice in writing<br />

stating the damage suffered and the amount of the claim.<br />

This notice is served on the Deputy Attorney-General of<br />

Quebec by registered or certified mail within three months<br />

after the time when the damage occurred.


BOOK TWO<br />

THE FAMILY


THE FAMILY 55<br />

TITLE ONE<br />

MARRIAGE<br />

CHAPTER I<br />

PROMISES OF MARRIAGE<br />

1 No obligation to contract marriage arises from any<br />

engagement or reciprocal promises of marriage.<br />

2 Malicious breach of a promise of marriage entails the<br />

obligation to repair the damage caused.<br />

However, no indemnity is payable for the loss of any<br />

benefits which the marriage might have procured for the<br />

plaintiff.<br />

3 Any promise that a lump sum indemnity will be paid in<br />

the event of a broken promise of marriage is without effect.<br />

4 Gifts made to intended consorts in contemplation of<br />

their marriage may be reclaimed if the marriage does not take<br />

place.<br />

This rule does not apply to presents of little value.<br />

5 The recourses provided for in the event of breach of<br />

promise of marriage must be exercised, on pain of forfeiture,<br />

within one year after the breach, or within one year after the<br />

donor becomes aware of it.


56 THE FAMILY<br />

CHAPTER II<br />

CONDITIONS REQUIRED FOR CONTRACTING<br />

MARRIAGE<br />

6 Marriage requires the free and enlightened consent of<br />

the intended consorts.<br />

7 Free and enlightened consent is the agreement expressed<br />

by a man and a woman to take each other as husband<br />

and wife.<br />

8 A person of major age under tutorship may not contract<br />

marriage.<br />

9 A person may not contract marriage before he is<br />

eighteen years old.<br />

Nevertheless, when an intended consort is sixteen years<br />

of age, a judge may grant a dispensation for serious reasons.<br />

The minor may submit the application alone.<br />

His parents or his tutor if any, and any person who has<br />

de facto custody of him, must be summoned.<br />

10 A second marriage may not be contracted before the<br />

annulment or dissolution of the first.<br />

11 No person may contract marriage with:<br />

1. any of his ascendants or descendants;<br />

2. his brother or his sister, or any of their children in the<br />

first degree.<br />

In cases of adoption, however, the judge may permit a<br />

marriage in the collateral line according to the circumstances.


THE FAMILY 57<br />

CHAPTER III<br />

OPPOSITION TO MARRIAGE<br />

12 Any interested person may oppose the solemnization of<br />

a marriage between persons incapable of contracting it.<br />

The Minister of Justice may do so as well.<br />

13 A minor may oppose a marriage with the authorization<br />

ofajudge.<br />

He may act alone as defendant.<br />

14 The rules of procedure governing opposition are found<br />

in the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

15 If the opposition is dismissed, the opponent may be<br />

liable for damages, according to the circumstances.<br />

CHAPTER IV<br />

THE SOLEMNIZATION OF MARRIAGE<br />

16 Marriage must be contracted openly, in the presence of<br />

two witnesses, before an officiant recognized by law.<br />

17 Every minister of religion authorized by law to solemnize<br />

marriage and, in the judicial district for which they are<br />

appointed, the prothonotary and each deputy whom he<br />

appoints, are competent to solemnize marriage.<br />

18 No minister of religion may be compelled to solemnize a<br />

marriage to which there is any impediment according to his<br />

religion.<br />

19 The officiant assures himself as to the identity and<br />

marital status of the intended consorts.


58 THE FAMILY<br />

For this purpose, he must obtain:<br />

1. an authentic copy of the act of birth of each consort, or<br />

of the judgment replacing that act;<br />

2. an authentic copy of the judgment authorizing a consort<br />

to marry if that consort is between sixteen and eighteen<br />

years old;<br />

3. an authentic copy of the final judgment dismissing an<br />

opposition to the marriage;<br />

4. an authentic copy of the final judgment and, where<br />

applicable, a certificate to the effect that the judgment is<br />

no longer subject to appeal, when one of the intended<br />

consorts is divorced or his marriage has been annulled:<br />

5. an authentic copy of the act of death of his spouse when<br />

one of the intended consorts is widowed.<br />

If he deems it necessary, he may also require an oath or a<br />

solemn affirmation of two witnesses who know the intended<br />

consorts.<br />

20 The officiant must also inform the intended consorts of<br />

existing community resources in matters of preparation for<br />

marriage, and also of the advisability of a pre-marital medical<br />

examination.<br />

21 A marriage may not be solemnized until twenty days<br />

have passed after the evidence required in Article 19 is<br />

received.<br />

The judge may reduce this period, however, if the<br />

circumstances so justify.<br />

22 At the outset of the marriage ceremony, the officiant<br />

verifies the identity of the intended consorts and assures<br />

himself that all formalities have been completed.<br />

In the presence of the witnesses, he reads Articles 41 and<br />

42 to the intended consorts.


THE FAMILY 59<br />

He requests, and receives from each party personally, a<br />

declaration of their wish to take each other as husband and<br />

wife; he then declares them united in marriage.<br />

23 He draws up the declaration of marriage immediately<br />

and reads it to the consorts and the witnesses.<br />

CHAPTER V<br />

PROOF OF MARRIAGE<br />

24 Marriage is proven by an act of marriage or by the<br />

judgment replacing the act.<br />

Possession of the status of legitimate consorts compensates<br />

for non-compliance with the formalities respecting the<br />

act of marriage.<br />

CHAPTER VI<br />

NULLITY OF MARRIAGE<br />

25 Marriage is absolutely null when contracted:<br />

1. by a person incapable of discernment;<br />

2. by a person of major age under tutorship;<br />

3. by a person already married;<br />

4. by a person less than sixteen years old;<br />

5. in spite of an impediment due to relationship.<br />

26 Nevertheless, a marriage contracted by a consort under<br />

tutorship or incapable of discernment may no longer be<br />

attacked if the consorts have cohabited for one year following<br />

the removal of tutorship or the recovery of discernment.<br />

27 Marriage is relatively null:


60 THE FAMILY<br />

1. when either consort has not given free consent;<br />

2. when either consort has been misled by an error as to the<br />

identity of his spouse;<br />

3. when either consort has been misled by an error as to an<br />

essential characteristic of his spouse, through the fraudulent<br />

practices of the spouse or by a third party, with the<br />

knowledge of that spouse.<br />

Nevertheless, the marriage may no longer be attacked if<br />

there has been continuous cohabitation for one year from the<br />

time the consort acquired complete freedom or became aware<br />

of his error.<br />

28 A simulated marriage may be declared null upon<br />

application by either party.<br />

The action in nullity may no longer be instituted if there<br />

has been continuous cohabitation for one year.<br />

A simulated marriage is one in which one or both parties<br />

go through the formalities of marriage without the intention<br />

of contracting marriage.<br />

29 A marriage contracted by a person who is impotent at<br />

the time of the marriage may be declared null upon application<br />

by either consort.<br />

The action in nullity may no longer be instituted if the<br />

marriage has been consummated.<br />

30 A marriage contracted without judicial dispensation by<br />

a consort between sixteen and eighteen years old may be<br />

declared null upon application by either consort, by the father<br />

or the mother of the consort who has not reached the required<br />

age, or by the person who has de facto or de jure custody of<br />

that consort, although the court may decide according to the<br />

circumstances.


THE FAMILY 61<br />

The action in nullity may no longer be instituted if one<br />

year has passed after the conditions regarding age are<br />

satisfied.<br />

31 A marriage which has not been contracted openly or<br />

before a competent officiant may be declared null upon<br />

application by any interested person, although the court may<br />

decide according to the circumstances.<br />

32 Nullity of a marriage, for whatever reason, never affects<br />

the rights of the children.<br />

33 A consort is presumed to have contracted marriage in<br />

good faith unless, when declaring the marriage null, the court<br />

declares him to be in bad faith.<br />

34 A consort in good faith is entitled to the civil effects of<br />

his marriage once it has been pronounced null.<br />

35 If one consort only was in good faith, he may either take<br />

back his property or apply for liquidation of the matrimonial<br />

regime which is deemed to have existed.<br />

36 A consort in bad faith takes back his property, subject to<br />

the preceding article.<br />

37 A consort in good faith is entitled to the gifts inter vivos<br />

made to him in consideration of his marriage, unless the<br />

matrimonial agreements provide otherwise.<br />

The court, however, may order the payment deferred for<br />

a period of time which it determines.<br />

38 The court may annul or reduce any irrevocable gifts<br />

mortis causa, taking the circumstances of the parties into<br />

account.<br />

39 Nullity of the marriage renders null the gifts made in<br />

consideration of the marriage to a consort in bad faith.


62 THE FAMILY<br />

40 Articles 249 to 258 apply to nullity of marriage.<br />

However, a consort in bad faith loses all right to support.<br />

CHAPTER VII<br />

EFFECTS OF MARRIAGE<br />

Section I<br />

Rights and duties of consorts<br />

41 Consorts have identical rights and obligations in<br />

marriage.<br />

They owe each other fidelity, succour and assistance.<br />

They must live together.<br />

42 The consorts together ensure the moral and material<br />

direction of the family and the education of the children born<br />

of their union.<br />

43 If it is impossible for one consort to manifest his<br />

intention for any reason, or if he cannot do so within the<br />

proper time, the other may act alone in emergencies and for<br />

the current needs of the household.<br />

44 Marriage does not affect the legal capacity of consorts.<br />

Their powers alone can be restricted by their matrimonial<br />

regime and by this chapter.<br />

45 Either consort may give his spouse a mandate to<br />

represent him, even in the exercise of the rights and powers<br />

attributed to him by the matrimonial regime.


THE FAMILY 63<br />

46 The court may confer upon either consort the administration<br />

of the property of his spouse or of the common<br />

property, when the spouse is unable to manifest his intention<br />

or cannot do so within the proper time.<br />

The court fixes the modes and conditions for exercising<br />

the powers conferred.<br />

The court declares the powers withdrawn once it is<br />

established that the judicial mandate is no longer necessary.<br />

47 Consorts contribute towards the expenses of the marriage<br />

in proportion to their respective means.<br />

Each consort may make his contribution by his activity<br />

within the home.<br />

48 A consort who enters into a contract for the current<br />

needs of the marriage assumes alone the obligations for the<br />

whole.<br />

He also commits his spouse to the extent that the spouse<br />

is bound to contribute to the expenses of the marriage.<br />

The spouse is not responsible for the debt, however, if he<br />

informed the other contracting party of his will not to be<br />

liable.<br />

49 The rules in Articles 47 and 48 apply also to de facto<br />

consorts.<br />

In this <strong>Code</strong>, de facto consorts are those who, although<br />

not married to each other, live together openly as husband and<br />

wife in a continuous and stable manner.<br />

50 A consort may be authorized by the judge to enter alone<br />

into any act for which the concurrence or consent of his spouse<br />

would be required, provided such concurrence or consent


64 THE FAMILY<br />

cannot be obtained for any reason, or the refusal is not<br />

justified by the interest of the family.<br />

The authorization must be special and for a determined<br />

time; it may be amended or revoked.<br />

An act entered into in accordance with this authorization<br />

may be invoked against the spouse, but entails no<br />

personal obligation for him.<br />

51 Under any regime, a consort who has administered the<br />

property of his spouse accounts only for the existing fruits and<br />

not for those consumed before he was put in default to render<br />

an account, unless there is express stipulation to the contrary.<br />

52 If one consort exceeds his powers over the property of<br />

the community or over his acquests, the other may apply for<br />

nullity of the act, unless he has ratified it.<br />

As regards moveable property, however, each consort is<br />

deemed, with respect to third parties in good faith, to have<br />

power to enter alone into acts by onerous title for which the<br />

concurrence or consent of his spouse would be necessary.<br />

Section II<br />

The family residence<br />

53 The consorts choose the principal family residence<br />

together.<br />

Exceptionally, the court may authorize either consort to<br />

take up separate residence for a limited time, and may issue<br />

such orders as are appropriate in the interest of the family.<br />

54 Neither consort may alienate any of his household<br />

furniture used by the family, charge it with a real right or<br />

remove it from the principal family residence, without the<br />

consent of his spouse.


THE FAMILY 65<br />

This provision does not apply, however, to a consort<br />

abandoned by his spouse.<br />

55 A consort who has not consented to an act concerning<br />

any housefold furniture used in the principal family residence<br />

may ask that the act be annulled, unless he has ratified it.<br />

However, no act by onerous title can be annulled if the<br />

other contracting party was in good faith.<br />

56 In the event of separation as to bed and board, divorce<br />

or annulment of marriage, the court may, in the interest of the<br />

family or of either consort, under any regime and according to<br />

the conditions it deems reasonable, attribute to one consort<br />

the ownership of the household furniture which belongs to the<br />

other and is used in the principal family residence.<br />

57 For the purposes of the preceding articles, "furniture"<br />

does not include books, instruments necessary for the practice<br />

of a profession, art or trade, or <strong>collections</strong> of objects of an<br />

artistic or a scientific nature.<br />

58 No consort who is the lessee of the principal family<br />

residence may, without the consent of his spouse, sublet it,<br />

transfer it or terminate the lease on it before the expiry of the<br />

term agreed upon or provided by law.<br />

59 No consort who owns an immoveable with fewer than<br />

four dwellings, used in whole or in part as the principal family<br />

residence and against which a declaration of residence has<br />

been registered, may, without the consent of his spouse,<br />

alienate the immoveable, charge it with a real right or lease<br />

that part of it reserved for the use of the family.<br />

The same applies to a usufructuary, an emphyteutic<br />

lessee and a person who has a right of use.<br />

60 If no consent is given, an act entered into by the consort<br />

who owns the immoveable or is the usufructuary, lessee or


66 THE FAMILY<br />

emphyteutic lessee of the principal family residence, or has a<br />

right of use over it, may be annulled upon application by his<br />

spouse, unless the spouse has ratified that act.<br />

61 The declaration of residence is made by either consort in<br />

the form of a notarial instrument en minute.<br />

It contains the information necessary for registration.<br />

62 The registration of a declaration of residence is cancelled,<br />

at the request of any interested person, in the cases<br />

provided for in Article 96 of the Book on Publication of<br />

Rights.<br />

63 The court orders the registration of a declaration of<br />

residence cancelled in the cases provided for in Article 99 of<br />

the Book on Publication of Rights.<br />

64 In the case of separation as to bed and board, divorce or<br />

annulment of marriage, the court, according to the conditions<br />

it deems reasonable, may attribute the lease of the principal<br />

family residence to the spouse of the lessee.<br />

The attribution may be invoked against the lessor as<br />

soon as a final judgment is served upon him, without prejudice<br />

to his rights against the original lessee, until the expiry of the<br />

term agreed upon or provided by law.<br />

65 When the immoveable used as the principal family<br />

residence is one upon which either consort or both consorts<br />

have a right of ownership, the court, upon dissolution of the<br />

matrimonial regime by death, divorce, separation as to bed<br />

and board or annulment of the marriage, may attribute, on<br />

conditions which it determines, the right of ownership or<br />

habitation to either consort or, in the case of death, to the<br />

survivor, upon payment of compensation if need be.<br />

66 When the family residence cannot be suitably relocated,<br />

the consort vested with the right by which the principal family


THE FAMILY 67<br />

residence is assured, or his spouse, may request the court to<br />

order suspension of the execution of a judgment of eviction for<br />

a limited time and according to the conditions it considers<br />

reasonable.<br />

Section III<br />

General provisions<br />

67 If the consorts disagree as to the moral and material<br />

direction of the family, the contribution to the expenses of the<br />

marriage, the education of the children or the choice of the<br />

family residence, either of them may apply to the court.<br />

After endeavouring to reconcile the parties, the court<br />

settles the dispute, taking the best interest of the family into<br />

account.<br />

68 This chapter, except Article 47, is imperative and<br />

applies to all consorts, whatever their matrimonial regime.<br />

CHAPTER VIII<br />

MATRIMONIAL REGIMES<br />

Section I<br />

General provisions<br />

69 Any kind of stipulation may be made in a matrimonial<br />

agreement, even some which would be void in any other act<br />

inter vivos, in particular, the renunciation of a succession<br />

which has not yet devolved or the renunciation of the<br />

successoral reserve of a surviving spouse, the gift of future<br />

property, the conventional appointment of an heir, and other<br />

provisions in contemplation of death.<br />

However, all other stipulations contrary to imperative


68 THE FAMILY<br />

provisions of law, or to public order or good morals are<br />

excepted from this rule.<br />

Accordingly, the consorts may not derogate from the<br />

provisions governing the effects of marriage or from those<br />

respecting parental authority, minority and protected persons.<br />

70 The law determines the matrimonial regime, but only if<br />

no special stipulations are made in the matrimonial<br />

agreements.<br />

71 Consorts are subject to the regime of partnership of<br />

acquests unless, before their marriage was solemnized, they<br />

made special agreements by marriage contract.<br />

72 A matrimonial regime, whether legal or conventional,<br />

takes effect between the parties on the day when the marriage<br />

is solemnized.<br />

A matrimonial regime changed during the marriage<br />

takes effect on the day when the act attesting to the change<br />

was homologated.<br />

In neither case may the parties stipulate that it will take<br />

effect on another date.<br />

73 A matrimonial agreement made by a minor not authorized<br />

to marry or by a person under tutorship is absolutely null.<br />

74 No person under curatorship may make a matrimonial<br />

agreement without the assistance of his curator.<br />

An agreement made in violation of this article may be<br />

impugned only by the person under curatorship or by his<br />

curator, and only during the year immediately following the<br />

solemnization of the marriage or the homologation of the<br />

matrimonial agreement, as the case may be.


THE FAMILY 69<br />

75 A matrimonial agreement must be attested to, on pain of<br />

absolute nullity, by a notarial deed en minute before the<br />

marriage is solemnized.<br />

A change made in a matrimonial agreement before the<br />

solemnization of the marriage must be attested to, on pain of<br />

absolute nullity, by a deed made in like form, in the presence<br />

and with the consent of all those whose rights are affected by<br />

the change.<br />

For a modification or suppression of a gift made to<br />

children to be born, such children are represented by the<br />

future consorts.<br />

76 During their marriage, consorts may change their<br />

matrimonial regime and any stipulation made in their matrimonial<br />

agreement and make any change respecting a gift or<br />

the status of specific property, provided the change does not<br />

compromise the interests of the family or the rights of their<br />

creditors.<br />

Gifts made in marriage contracts, including those made<br />

in contemplation of death, may be changed even if they are<br />

stipulated as irrevocable, provided the consent of those who<br />

accepted the gifts or that of their representatives is obtained.<br />

77 The agreements made between consorts under the<br />

preceding article must be attested to, on pain of absolute<br />

nullity, by a notarial deed en minute, and homologated by the<br />

court of their common domicile or of the domicile of either<br />

consort.<br />

78 An act made under Articles 75 and 77 has effect with<br />

respect to third parties, but only after a notice is caused to be<br />

registered by the parties in the central register of matrimonial<br />

regimes.


70 THE FAMILY<br />

This notice states:<br />

1. the surname, given names, and date of birth of each<br />

consort;<br />

2. the surnames and given names of both parents of each<br />

consort, if they are known;<br />

3. the date of the act, and the surname, given names and<br />

domicile of practice of the notary who received it;<br />

4. the date of the act attesting to any matrimonial agreements<br />

which have been changed, and the surname,<br />

given names and domicile of practice of the notary who<br />

received it;<br />

5. the date of the judgment, the number of the file, and the<br />

name of the district and of the court, where need be.<br />

79 Dissolution of a matrimonial regime resulting from a<br />

judgment granting separation as to property, separation as to<br />

bed and board, nullity of marriage, or divorce, has effect with<br />

regard to third parties only after a notice of that judgment,<br />

containing the information required under the preceding<br />

article, is registered in the central register of matrimonial<br />

regimes.<br />

Section II<br />

Partnership of acquests<br />

§ - 1 Composition of the partnership of acquests<br />

80 The property which each consort possesses when the<br />

regime eomes into effect or which he subsequently acquires<br />

constitutes acquests or private property according to the rules<br />

which follow.<br />

81 The acquests of each consort include all property not<br />

declared private property by a provision of this section.


THE FAMILY 71<br />

In particular:<br />

1. the proceeds of his work during the regime;<br />

2. the fruits and income due or collected from all his<br />

private property or acquests during the regime.<br />

82 The private property of each consort consists of:<br />

1. property owned or possessed when the regime comes<br />

into effect;<br />

2. property which accrues to him during the regime by<br />

succession, legacy or gift, and the fruits and income<br />

derived from that property if the testator or donor has so<br />

expressly provided;<br />

3. property acquired by him to replace private property;<br />

4. the rights or advantages which accrue to him as a<br />

contingent owner or as a beneficiary, designated by the<br />

spouse or by a third party, under a contract or plan for a<br />

retirement pension or other annuity, or for insurance of<br />

persons;<br />

5. his clothing, personal linen, decorations, diplomas and<br />

correspondence;<br />

6. the instruments required for his occupation, saving<br />

compensation where applicable.<br />

83 Property acquired partly from private property and<br />

partly from acquests is also private property, saving compensation<br />

in favour of the acquests.<br />

However, if the value of the acquests is equal to or<br />

greater than that of the private property used to acquire this<br />

property, that property becomes an acquest subject to compensation,<br />

even though the cost has not been paid.<br />

The same rule applies to insurance of persons, retirement<br />

pensions and other annuities which a consort may<br />

redeem in advance.


72 THE FAMILY<br />

84 When, during the regime, a consort acquires another<br />

share in property of which he was already privately an<br />

undivided co-owner, this acquired share is also his private<br />

property, saving compensation where applicable.<br />

However, if the value of the acquests used to acquire this<br />

share or several shares in succession is equal to or greater than<br />

half the total value of the property of which the consort has<br />

become the owner, this property becomes an acquest, subject<br />

to compensation.<br />

85 The right of a consort to support, to a disability<br />

allowance, or to any other benefit of the same nature remains<br />

his private property; however, all pecuniary benefits derived<br />

from these are acquests, as are all those that fall due or are<br />

collected during the regime, or are payable at his death to his<br />

heirs and legal representatives.<br />

The same applies to retirement pensions and other<br />

annuities which the holder cannot redeem in advance.<br />

No compensation is due by reason of any amount or<br />

premium paid out of the acquests or the private property.<br />

86 Compensation received as damages for physical or<br />

moral injury to the person, the right to the claims or compensation,<br />

and the actions arising from them, are also private<br />

property.<br />

87 Property acquired as an accessory of or an annex to<br />

private property, and any construction erected on an immoveable<br />

which is private property, remains private, saving<br />

compensation if need be.<br />

However, if the accessory or annex was acquired, or the<br />

construction erected, from acquests, and if its value is equal to<br />

or greater than that of the private property, the whole becomes<br />

an acquest subject to compensation.<br />

88 The same criterion app 4 :<br />

acquired successively.


THE FAMILY 73<br />

However, in this case, the total value of all private<br />

property and acquests used since the first transaction involving<br />

this property must be taken into consideration.<br />

89 The proceeds of any distribution of a capital nature<br />

pertaining to securities which are the private property of one<br />

consort remain his private property.<br />

This rule applies in particular to the proceeds of any<br />

capitalization of reserves or surplus, of share dividends, of any<br />

redemption or prepaid premiums, and any securities acquired<br />

by the exercise of a right of subscription.<br />

However, share dividends and securities acquired under<br />

a right of subscription are private property only subject to<br />

compensation.<br />

90 The pecuniary proceeds of any creative work or of the<br />

total or partial transfer of the right to exploit it are acquests if<br />

they are collected or fall due during the regime.<br />

The right to divulge the work, to fix the conditions of its<br />

exploitation and to defend its integrity remains private<br />

property.<br />

91 All property is presumed to constitute an acquest, both<br />

between the consorts and with respect to third parties.<br />

92 Any property which a consort is unable to prove to be<br />

his private property or acquest is presumed to be held by both<br />

consorts in undivided ownership, half by each.<br />

§ - 2 Administration of property and liability for debts<br />

93 Each consort has the administration, the enjoyment and<br />

the free disposal of his private property and acquests.<br />

He may not, however, without the consent of his spouse,


74 THE FAMILY<br />

dispose of his acquests inter vivos by gratuitous title, with the<br />

exception of modest sums and customary presents.<br />

Consent given by a consort does not have the effect of<br />

binding him personally.<br />

94 The preceding article does not limit the right of a<br />

consort to designate third parties as contingent owners or as<br />

beneficiaries of a retirement pension or other annuity, or of<br />

insurance of persons.<br />

No compensation is due by reason of the sums or<br />

premiums paid out of the acquests if the designation is in<br />

favour of the spouse or of the children of the consort or of the<br />

spouse.<br />

95 Each consort is liable on both his private property and<br />

his acquests for all debts incurred by him before or during the<br />

marriage.<br />

While the regime lasts, he is not liable for the debts<br />

incurred by his spouse, subject to Articles 47 and 48.<br />

§ - 3 Dissolution and liquidation of the regime<br />

96 The regime of partnership of acquests is dissolved by:<br />

1. the death of either consort;<br />

2. a declaratory judgment of absence or of death;<br />

3. a conventional change of regime in accordance with<br />

Articles 76 and following;<br />

4. a judgment which pronounces divorce, separation as to<br />

bed and board, or separation as to property.<br />

97 Each consort retains his private property after the<br />

regime is dissolved.<br />

He may accept or renounce the partition of his spouse's


THE FAMILY 75<br />

acquests, notwithstanding any stipulation to the contrary even<br />

by matrimonial agreements.<br />

98 Acceptance may be either express or tacit.<br />

No consort who has interfered in the management of the<br />

acquests of his spouse after the regime is dissolved may<br />

renounce partition.<br />

Conservatory acts or acts of simple administration do<br />

not constitute interference.<br />

99 Renunciation must be made by notarial deed en minute<br />

or by judicial declaration recorded by the court.<br />

A consort who has not registered his renunciation<br />

within one year following the date of the dissolution is deemed<br />

to have accepted.<br />

100 If a consort renounces partition, the share of his<br />

spouse's acquests to which he would have been entitled<br />

remains vested in that spouse.<br />

However, the creditors of the consort who renounces<br />

partition to the prejudice of their rights may attack the<br />

renunciation and accept the share of the acquests of their<br />

debtor's spouse in the place and stead of that debtor.<br />

In this case, the renunciation is annulled only in favour<br />

of the creditors and only to the extent of the amount of their<br />

claims; it is not annulled in favour of the renouncing consort.<br />

101 A consort who has abstracted or concealed acquests<br />

forfeits his share of them unless his spouse renounces them.<br />

Moreover, he forfeits the benefit of emolument.<br />

102 Acceptance and renunciation are irrevocable.


76 THE FAMILY<br />

103 When the regime is dissolved by death, the heirs of the<br />

deceased consort may accept or renounce the partition of the<br />

surviving spouse's acquests and Articles 97 to 102 apply to<br />

them.<br />

If one of the heirs accepts partition and the others<br />

renounce it, the heir who accepts may take only the portion of<br />

the acquests which he would have had if all had accepted.<br />

104 When a consort dies while still entitled to renounce<br />

partition, his heirs have a further period of one year from the<br />

date of the death in which to register their renunciation.<br />

105 When a consort's acquests are accepted, the property of<br />

his patrimony must first be divided into two masses, one<br />

comprising the private property and the other the acquests.<br />

106 A statement is then prepared of the compensation owed<br />

by the mass of private property to the mass of the consort's<br />

acquests and vice versa.<br />

107 The compensation is equal to the enrichment enjoyed by<br />

one mass to the detriment of the other or to the amount of the<br />

actual expense if it exceeds the enrichment.<br />

108 The enrichment is assessed on the day the regime<br />

dissolves.<br />

However, when the property acquired or improved was<br />

alienated during the regime, the enrichment is valued as of the<br />

day of the alienation.<br />

109 No compensation is due by reason of expenses incurred<br />

solely for the maintenance or preservation of the property.<br />

110 Unpaid debts incurred for the benefit of the private<br />

property give rise to compensation for the resulting enrichment,<br />

as if they had already been paid out of the acquests.


THE FAMILY 77<br />

111 Payment out of acquests of any fine incurred under a<br />

penal provision of the law gives rise to compensation in all<br />

cases.<br />

112 If the statement shows a balance in favour of the mass of<br />

acquests, the consort who holds the patrimony makes a return<br />

to the mass for partition, either by taking less, or in value, or<br />

from his private property.<br />

If the statement shows a balance in favour of the mass of<br />

private property, the consort removes assets from his acquests<br />

up to the amount owed.<br />

113 Once the settlement of compensation has been completed,<br />

the mass of acquests of the consort who holds the<br />

patrimony is evenly divided with the spouse, according to the<br />

rules of this <strong>Code</strong> governing partition, unless the consort who<br />

holds the patrimony prefers to reimburse his spouse by paying<br />

all or part of what is due.<br />

If, however, the dissolution of the regime results from<br />

the death or absence of the consort who holds the patrimony,<br />

his spouse may require, on payment of any balance, that his<br />

share include the family residence and the household furniture<br />

and any other property forming part of the mass for<br />

partition.<br />

If there is no agreement between the parties, the evaluation<br />

of property for the purposes of applying this article is<br />

made by experts designated by the parties themselves or, in<br />

the absence of designation, by a judge of the Superior Court of<br />

the district of the conjugal domicile.<br />

114 If there is a balance, the court fixes the conditions of<br />

payment, especially that part which may be paid on instalments,<br />

the amount and due dates of payments, and the<br />

interest rate.<br />

115 Dissolution of the regime cannot prej udice the recourse,


78 THE FAMILY<br />

before the partition, of former creditors against all of their<br />

debtor's patrimony.<br />

After the partition, the former creditors may sue the<br />

consort who is their debtor, and also his spouse, for payment<br />

of their claims, but only to the extent of the benefit derived by<br />

that spouse.<br />

116 Each consort, however, has recourse against the other<br />

for one-half of the sums that he has thus been called upon to<br />

pay-<br />

Section III<br />

Community of property<br />

117 The regime of community of moveables and acquests<br />

provided for below is established by a simple declaration<br />

made to this effect in the matrimonial agreement.<br />

The regime may be modified by special clauses.<br />

§ - 1 Community of moveables and acquests<br />

/ - Assets and liabilities of the community of moveables and<br />

acquests<br />

118 The assets of the community consist of:<br />

1. the moveable property which the consorts possess when<br />

the regime comes into effect, and any moveable property<br />

which accrues to them subsequently by gratuitous title<br />

during the regime, provided the donor or the testator<br />

has not provided otherwise, and the fruits and income<br />

derived from that property;<br />

2. the proceeds of the work of the consorts during the<br />

regime, subject to Articles 2 16 and following respecting<br />

reserved property:


THE FAMILY 79<br />

3. the fruits and income derived from the private property<br />

of the consorts;<br />

4. the immoveables which they acquire during the regime,<br />

subject to sub-paragraph 4 of Article 132.<br />

119 Any property is deemed to be an acquest of the community<br />

unless it is established as the private property of one<br />

consort by the application of a provision of law.<br />

120 The private nature of property is established both<br />

between the consorts and with respect to third parties according<br />

to ordinary rules of law.<br />

121 The immoveables which each consort possesses when<br />

the regime comes into effect or which are acquired by<br />

gratuitous title during the regime do not enter into the<br />

community unless the gift is made jointly to both consorts.<br />

122 An immoveable acquired by a consort between the<br />

moment when the matrimonial agreement stipulating community<br />

is made and the moment when the marriage is<br />

solemnized enters into the community, unless it was acquired<br />

in execution of some clause of the contract, in which case it is<br />

governed according to the agreement.<br />

123 If the gift was made to one consort on condition that he<br />

pay the donor's debts, or in payment of a debt owed by the<br />

donor, the immoveable does not enter into the community,<br />

saving compensation or indemnity.<br />

124 An immoveable acquired during the regime in exchange<br />

for another immoveable belonging to one consort does not<br />

enter into the community and is subrogated in the place of the<br />

immoveable so alienated, subject to compensation if there is a<br />

balance.<br />

If, however, the balance exceeds half the value of the<br />

property acquired in exchange, the property enters into the<br />

community, subject to compensation.


80 THE FAMILY<br />

125 When, during the regime, a consort acquires a share of<br />

an immoveable of which he was a private co-owner, the share<br />

so acquired remains his private property, subject to any<br />

compensation to the community, even though the price has<br />

not been paid.<br />

Nevertheless, if he acquires a new share or new shares<br />

successively, using private or community property, the property<br />

remains private if the total value of the private property so<br />

used is equal to or greater than the total value of the<br />

community property; in other cases, the property will be part<br />

of the community, subject to compensation.<br />

126 All rights or advantages which accrue to a consort as a<br />

contingent owner or as a beneficiary designated by the spouse<br />

or by a third party, under a contract or plan for a retirement<br />

pension or for another annuity, or for insurance of persons, are<br />

private property.<br />

127 The proceeds of any distribution of a capital nature<br />

pertaining to securities which are the private property of one<br />

consort remain his private property.<br />

This rule applies in particular to the proceeds of any<br />

capitalization of reserves or surplus, of share dividends, of any<br />

redemption or prepaid premiums, and of any securities<br />

acquired by the exercise of a right of subscription.<br />

However, share dividends and securities acquired by a<br />

right of subscription are private property only subject to<br />

compensation.<br />

128 Property acquired as an accessory of or annex to private<br />

property, and any construction erected on an immoveable<br />

which is private property, remain private, saving compensation<br />

if need be.<br />

If, however, the accessory or annex was acquired, or the<br />

construction erected, from the common property, and if its


THE FAMILY 81<br />

value is equal to or greater than that of the private property,<br />

the whole becomes common property, subject to<br />

compensation.<br />

129 The same criterion applies to accessories or annexes<br />

acquired successively.<br />

However, in this case, the total value of the private<br />

property and community property used since the first transaction<br />

involving this property must be taken into consideration.<br />

130 The right of a consort to support, to a disability<br />

allowance or to any other benefit of the same nature remains<br />

his private property; however, all pecuniary benefits derived<br />

from it are common property if they fall due or are collected<br />

during the regime or are payable at his death to his heirs and<br />

legal representatives.<br />

The same applies to retirement pensions and other<br />

annuities which the holder cannot redeem in advance.<br />

No compensation is due by reason of any amount or<br />

premium paid out of the community property or the private<br />

property.<br />

131 The pecuniary proceeds of any creative work or of the<br />

total or partial transfer of the right to exploit it are community<br />

property if they are collected or fall due during the regime.<br />

The right to divulge the work, to fix the conditions of its<br />

exploitation and to defend its integrity remains private<br />

property.<br />

132 The private property of each consort consists of:<br />

1. his clothing, personal linen, decorations, diplomas, and<br />

correspondence;<br />

2. compensation collected during the regime as damages


82 THE FAMILY<br />

for physical or moral injury to the person, and the right<br />

to the compensation, and the actions arising from it;<br />

3. the instruments required for his occupation, saving<br />

compensation where applicable;<br />

4. property acquired by him to replace private property.<br />

133 The liabilities of the community consist of:<br />

1. all debts, in capital, arrears or interest, contracted by<br />

either consort during the community, in accordance<br />

with the rules provided in Articles 141 to 149;<br />

2. the arrears and interest, but not the capital, of the rents<br />

and debts which are personal to the consorts;<br />

3. the support of the consorts, the education and maintenance<br />

of the children and any other expenses of the<br />

marriage;<br />

4. the debts of each consort when the regime first takes<br />

effect, and those which affect the successions and gifts<br />

which accrue to him during the regime, up to the value<br />

of the property which forms part of the community;<br />

5. the maintenance repairs of the immoveables which do<br />

not form part of the community.<br />

134 Payment of the debts which each consort incurred<br />

before the regime could be set up against creditors may be<br />

sued for out of the property which at that time formed the<br />

pledge of the creditors and also, if the property is insufficient,<br />

out of the common property, so that the distribution of debts<br />

cannot harm the creditors.<br />

The community is entitled to compensation for the<br />

amount of the debts it has paid beyond the value of the<br />

property received.<br />

135 The creditors of the succession may sue for payment out<br />

of all the property of the inheritance and furthermore, in cases<br />

of outright acceptance, out of both the private property of the


THE FAMILY 83<br />

consort who succeeds and the common property, to the extent<br />

specified in Article 136, subject to the respective compensations<br />

when the debt must not remain a charge upon the person<br />

who paid it.<br />

136 If the succession falls to the administrator of the<br />

community, the creditors of the succession may sue for<br />

payment out of his private property and the common<br />

property.<br />

137 If the succession falls to the spouse and he accepts it<br />

outright without opposition on the part of the administrator,<br />

the creditors of the succession may sue for payment out of that<br />

spouse's private and reserved property and out of the common<br />

property.<br />

138 If the succession which falls to the spouse is accepted by<br />

him in spite of opposition by the administrator, the creditors<br />

may sue for payment out of the property of the succession, out<br />

of the consort's private and reserved property, and out of the<br />

property of the community, but only to the extent that the<br />

community has benefited.<br />

The administrator of the community must prove the<br />

extent to which the community has benefited.<br />

139 The creditors of the succession need make no distinction<br />

as to whether or not the property of the succession remains the<br />

private property of the consort who inherits.<br />

140 The rules in Articles 133 and 135 to 139 govern the<br />

debts attached to a gift or a legacy as well as those which result<br />

from a succession.<br />

141 The creditors may sue for payment of the debts contracted<br />

by the administrator of the community during the<br />

regime, not only out of his private property but also out of the<br />

property of the community.


84 THE FAMILY<br />

142 The creditors may sue for payment of the debts contracted<br />

by the spouse without opposition from the administrator,<br />

out of both the property of the community and the<br />

spouse's private and reserved property.<br />

The administrator may oppose any such act entered into<br />

by his spouse within three months after he becomes aware of<br />

it, unless he has already consented to it; the only effect of the<br />

consent of, or absence of opposition from, the administrator to<br />

an act performed by his spouse is to bind the community.<br />

143 The creditors may sue for payment of the debts contracted<br />

by the spouse, in spite of opposition from the administrator,<br />

out of the spouse's private and reserved property.<br />

However, their right to be paid out of the property of the<br />

community is limited to the pecuniary advantage the community<br />

derived from the act of the spouse.<br />

144 A consort common as to property who carries on a trade<br />

or occupation without opposition from the administrator<br />

binds the community for all that relates to the trade or<br />

occupation.<br />

145 A consort who carries on a trade or occupation despite<br />

opposition from the administrator binds the community, but<br />

only up to the amount of the pecuniary advantage that the<br />

community derives from it.<br />

146 In the cases provided for in Articles 138, 142, 143 and<br />

145, third parties are deemed to have been aware of the<br />

opposition of the administrator of the community from the<br />

date on which the administrator files a declaration to that<br />

effect in the office of the prothonotary of the Superior Court of<br />

the district where the succession opened, the administrator is<br />

domiciled, or the trade or occupation is carried on as the case<br />

may be.<br />

147 When, during the regime, the community becomes


THE FAMILY 85<br />

liable for a debt attributable to one of the consorts alone,<br />

payment may not be claimed against the private property of<br />

the other.<br />

When the community is solidarity liable for a debt, it is<br />

deemed attributable to the consorts. However, when one<br />

consort simply agrees to the other incurring the obligation, the<br />

debt of the community is attributable to the other alone.<br />

148 <strong>Civil</strong> or penal fines incurred by a consort for a criminal<br />

or penal offence, an offence or a quasi-offence, or failure to<br />

fulfil any legal obligation, may be recovered out of the<br />

property of the community.<br />

However, those incurred by the administrator of the<br />

community may not be recovered from the reserved property<br />

of his spouse.<br />

149 The community is entitled to compensation when it is<br />

compelled to pay a debt incurred during the regime by one of<br />

the consorts in his own interest alone.<br />

// - Administration of the community of moveables and acquests,<br />

and effect of the acts of the consorts<br />

150 The consorts may agree that either of them will be the<br />

administrator of the community.<br />

They are presumed to have selected the husband as the<br />

administrator in the absence of any express stipulation in the<br />

marriage contract.<br />

151 The administrator alone manages the property of the<br />

community subject to Articles 157, and 216 and following.<br />

152 The administrator may not hypothecate any immoveable<br />

property of the community, or otherwise alienate it<br />

by onerous title without the consent of his spouse.


86 THE FAMILY<br />

However, without this consent he may sell, alienate or<br />

hypothecate any moveable property other than a business<br />

concern or the household furniture used by the family.<br />

153 Without the consent of his spouse, he may not dispose of<br />

the property of the community by gratuitous title inter vivos,<br />

except modest sums and customary presents.<br />

154 The consent given by the spouse of the administrator<br />

never has the effect of committing him personally with respect<br />

to his private or reserved property.<br />

155 Articles 150 to 154 do not restrict the right of the<br />

administrator of the community to designate third parties as<br />

contingent owners or as beneficiaries of a retirement pension<br />

or other annuity, or insurance of persons.<br />

No compensation is due by reason of the sums or<br />

premiums paid out of the property of the community if the<br />

designation is in favour of the spouse or of the children of the<br />

administrator or of his spouse.<br />

156 An administrator is subject to the same obligations as<br />

the administrator of the property of another where applicable.<br />

157 A consort may not bequeath more than his share of the<br />

community to the detriment of the other.<br />

The bequest of an object which belongs to the community<br />

is subject to the rules applicable to the bequest of a thing<br />

only partly owned by the testator.<br />

If the thing is included in the testator's share and is in<br />

his succession, the legatee is entitled to all of it.<br />

158 The community owes compensation to the consort who<br />

owns private property whenever it has benefited financially<br />

from the property.


THE FAMILY 87<br />

Conversely, a consort who owns private property owes<br />

compensation to the community whenever his property has<br />

benefited financially from the property of the community.<br />

159 Reinvestment is perfect with respect to the consort<br />

whenever, at the time of the acquisition, he declares he is<br />

making the purchase with the proceeds from the alienation of<br />

private property, or for the purpose of replacing it. In the<br />

absence of a declaration, the private nature of the property<br />

may nevertheless be proven by any means.<br />

When the price of the property acquired exceeds the<br />

sum invested or reinvested, the community is entitled to<br />

compensation. However, if the amount of the compensation is<br />

equal to or greater than half the price, the property acquired<br />

becomes part of the community, subject to compensation,<br />

even if the price has not yet been paid.<br />

The same rule applies to insurance of persons and to<br />

retirement pensions and other annuities which the consort<br />

may redeem in advance.<br />

160 If the consorts have jointly bestowed a benefit on their<br />

child, without stipulating the proportion they intended to<br />

contribute, they are presumed to have intended to contribute<br />

equally, whether the benefit has been furnished or promised<br />

from the property of the community or from the private<br />

property of one of them; in the second case, this consort is<br />

entitled to recover from the property of the other, half of what<br />

he has provided, with due consideration for the value of the<br />

property at the time of the gift.<br />

/// - Dissolution of the community<br />

161 The regime of community is dissolved for the same<br />

reasons as those provided in Article 96 for dissolution of the<br />

regime of partnership of acquests.


88 THE FAMILY<br />

IV - Acceptance of the community<br />

162 After the community is dissolved, the spouse of the<br />

administrator, or his successors, may accept it or renounce it.<br />

Any agreement to the contrary is without effect.<br />

163 The spouse of the administrator who has interfered with<br />

the management of the property of the community may not<br />

renounce it.<br />

Conservatory acts or acts of simple administration do<br />

not constitute interference.<br />

164 The spouse of the administrator who has assumed the<br />

quality of common as to property may not renounce it or be<br />

relieved of this quality unless there has been fraud on the part<br />

of the administrator's heirs.<br />

165 Within three months after the death of the administrator,<br />

the surviving spouse must have an inventory made of the<br />

property of the community, in the presence of the heirs of the<br />

administrator or after they have been duly summoned.<br />

The inventory must be made in notarial form en minute.<br />

166 However, the spouse of the administrator may renounce<br />

the community without inventory when:<br />

1. the community was dissolved during the lifetime of the<br />

administrator;<br />

2. the heirs of the administrator are in possession of all the<br />

property;<br />

3. an inventory has been made at the request of the heirs of<br />

the administrator or was made shortly before his death;<br />

4. there has recently been a seizure and general sale of the<br />

property of the community or it has been established by<br />

an official return that none existed.


THE FAMILY 89<br />

167 Apart from the three months allowed the spouse of the<br />

administrator to make the inventory, he has a forty-day period<br />

in which to deliberate upon acceptance or renunciation; this<br />

period begins when the three months expire or when the<br />

inventory closes if it has been completed before the end of the<br />

three months.<br />

168 The spouse of the administrator must make his renunciation<br />

within the three-month and forty-day periods, in a deed<br />

in notarial form en minute or by a judicial declaration<br />

recorded by the court.<br />

169 If the spouse does not register his renunciation within<br />

one year after dissolution, he is deemed to have accepted.<br />

170 If the spouse of the administrator is sued as common as<br />

to property, he may obtain from the court, according to the<br />

circumstances, an extension of the periods established in the<br />

preceding articles.<br />

171 If the spouse of the administrator has not made the<br />

inventory or his renunciation within the periods prescribed or<br />

granted, he is not automatically precluded from so doing; on<br />

the contrary, he is allowed to do so as long as he has not<br />

interfered or acted as being in community; he may be sued as<br />

being in community until he has renounced, and is responsible<br />

for the costs incurred against him until his renunciation.<br />

172 If the spouse of the administrator has abstracted or<br />

concealed any property of the community, he is declared to be<br />

in community, notwithstanding his renunciation.<br />

The same rule applies to his heirs.<br />

173 If the spouse of the administrator dies before the three<br />

months have expired and without making or completing the<br />

inventory, the heirs have a further period of three months<br />

from the death of the spouse to make or complete it, and forty<br />

days to deliberate after the closing of the inventory.


90 THE FAMILY<br />

If the spouse dies after completing the inventory, the<br />

heirs have a further period of forty days after his death to<br />

deliberate.<br />

Moreover, they may always renounce the community in<br />

the forms established with respect to the spouse of the<br />

administrator, and Articles 170 and 171 apply to them.<br />

174 The creditors of the spouse of the administrator may<br />

impugn any renunciation made to the detriment of their<br />

rights, and may accept the community in their own right.<br />

In this case, the renunciation is annulled only in favour<br />

of these creditors and up to the amount of their claims. It is not<br />

annulled in favour of the consort who has renounced.<br />

175 Whether the spouse of the administrator accepts or<br />

renounces, during the periods provided or granted for the<br />

inventory or deliberation, he owes no rent for his occupation<br />

of the house where he remains after the death of the administrator,<br />

whether the house belongs to the community or the<br />

heirs of the deceased or is held under lease; in the last case,<br />

the spouse of the administrator does not contribute to the rent<br />

during these periods; the rent is taken out of the mass.<br />

176 When the community is dissolved because the spouse of<br />

the administrator has died before him, his heirs may renounce<br />

within the period and in the forms prescribed by law with<br />

respect to the surviving consort, although they are not<br />

required to make an inventory for that purpose.<br />

V - Partition of the community<br />

111 After acceptance of the community by the spouse of the<br />

administrator or by his heirs, each consort or his heirs takes<br />

back the private property which has not become part of the<br />

community, if it exists in kind, or any property substituted for<br />

it.


THE FAMILY 91<br />

Then, the mass of the community, its assets and liabilities,<br />

is liquidated.<br />

178 A statement is prepared, for each of the consorts, of any<br />

compensation which he owes to the community or which it<br />

owes him.<br />

179 The compensation is equal to the enrichment of one<br />

mass at the expense of the other or to the amount of the actual<br />

expense if it exceeds the enrichment.<br />

180 The enrichment is assessed on the day the regime<br />

dissolves.<br />

However, when the property acquired or improved has<br />

been alienated during the regime, the enrichment is assessed<br />

on the date of the alienation.<br />

181 No compensation is due by reason of expenses incurred<br />

solely for the maintenance or preservation of property.<br />

182 If the account discloses a balance in favour of the<br />

community, the consort pays the amount into the mass of the<br />

community.<br />

If it discloses a balance in favour of the consort, he<br />

demands payment or pretakes common property in advance<br />

up to the total of the amount owed.<br />

183 Pretakings are made first against the cash, then against<br />

the moveables, and subsidiarily against the immoveables of<br />

the community.<br />

In the last two cases, the person who pretakes has a<br />

choice of the property in each category.<br />

184 The administrator's pretakings are made after those of<br />

his spouse.


92 THE FAMILY<br />

185 The administrator may make his reprises only against<br />

the property of the community.<br />

If the community is insufficient, the spouse makes his<br />

reprises against the private property of the administrator.<br />

186 Compensation owed by or to the community bears<br />

interest of right from the date the regime is dissolved.<br />

187 After the pretakings have been made and the debts paid<br />

from the mass, the remainder is divided equally between the<br />

consorts or their representatives.<br />

188 If the heirs of the spouse of the administrator are<br />

divided, so that one has accepted the community and the<br />

others have renounced, the heir who has accepted may take,<br />

from the property which falls to the lot of the spouse, only that<br />

portion which he would have had if all had accepted.<br />

The remainder belongs to the administrator, who is still<br />

responsible, to the heirs who have renounced, for the rights<br />

which the spouse could have exercised in the event of<br />

renunciation, but only to the amount of the hereditary share of<br />

each heir who has renounced.<br />

189 Partition of the community, with respect to form,<br />

licitation, effects, guarantees resulting from it, and the<br />

payment of balances, is subject to the rules governing partition<br />

in the Book on Succession.<br />

190 A consort who has abstracted or concealed property<br />

belonging to the community forfeits his share of this property<br />

unless his spouse renounces it.<br />

191 After the partition, if one of the consorts is the personal<br />

creditor of the other, as when the price of his property has<br />

been used to pay a personal debt of the other, or for any other<br />

purpose, he makes his claim on the share of the community<br />

allotted to his debtor or on the debtor's private property.


THE FAMILY 93<br />

192 Personal claims which the consorts exercise against each<br />

other bear interest only according to the rules in the Book on<br />

Obligations.<br />

193 Gifts made by one consort to the other are not taken<br />

from the community, but only from the donor's share or from<br />

his private property.<br />

194 After the partition, each consort may be sued for the full<br />

amount of outstanding debts that are liabilities of the community<br />

attributable to him.<br />

195 Each consort may be sued for only one-half of the debts<br />

that are liabilities of the community attributable to his spouse.<br />

Nevertheless, he is bound only to the extent of the<br />

benefit he derives from the community.<br />

196 Between themselves, the consorts each contribute half<br />

the debts of the community for which no compensation is<br />

owing, and half the expenses for seals, inventories, sales of<br />

moveable property, liquidation, licitation and partition.<br />

A consort bears alone any debts which only became<br />

liabilities of the community subject to compensation by him.<br />

197 A consort who may avail himself of the second paragraph<br />

of Article 195 only contributes to the debts of the<br />

community attributable to his spouse to the extent of the<br />

benefit he derives, unless they are debts for which he himself<br />

would have owed compensation.<br />

198 A consort who has paid a greater portion of a debt than<br />

the amount for which he was bound under the preceding<br />

articles has no recourse against the creditor to recover the<br />

excess, unless the receipt indicates his intention to pay only to<br />

the extent of his debt.<br />

However, he has a recourse against his spouse.


94 THE FAMILY<br />

199 A consort who, by the effect of a hypothec upon an<br />

immoveable that has fallen to his share, is sued for the whole<br />

of a debt of the community, has of right recourse against the<br />

other consort or his heirs for one-half the debt.<br />

200 The preceding articles do not preclude any clause in the<br />

partition obliging one of the consorts to pay a share of the<br />

debts other than that determined above, or even to pay all the<br />

debts, without prejudice to the rights of third parties.<br />

201 When the community is dissolved, the heirs of the<br />

consorts exercise the same rights and are subject to the same<br />

obligations as the consorts they represent.<br />

VI - Renunciation of the community and its effects<br />

202 If the spouse of the administrator renounces, he may not<br />

claim any share in the property of the community, not even in<br />

the moveable property he brought into it.<br />

203 The spouse who renounces the community takes back:<br />

1. his private property or property that has been acquired<br />

in replacement;<br />

2. the price of his private property that has been alienated<br />

or any money received in replacement and not invested<br />

or reinvested;<br />

3. any compensation that may be due to him from the<br />

community.<br />

204 The spouse who renounces is freed from any contribution<br />

to the debts of the community, with respect to both the<br />

administrator and the creditors.<br />

He remains bound, however, by all debts personally<br />

assumed.<br />

205 He may exercise all the rights and reprises enumerated


THE FAMILY 95<br />

above against both the property of the community and the<br />

private property of the administrator.<br />

His heirs may do the same except with regard to lodging<br />

and maintenance during the periods allowed for the inventory<br />

and deliberation.<br />

§ - 2 Principal clauses that may modify the community of<br />

moveables and acquests<br />

/ - The community reduced to acquests<br />

206 When the consorts stipulate that there will be only a<br />

community of acquests between them, they are deemed to<br />

exclude from the community all their property and debts<br />

existing when the regime begins, as well as those they acquire<br />

later as private property.<br />

In this case, and after each consort has taken his duly<br />

justified contributions, the partition is restricted to the<br />

acquests made by the community.<br />

II - The right to take back free and clear what was brought into<br />

the community<br />

207 The spouse of the administrator may stipulate that, in<br />

the event of renunciation of the community, he may take back<br />

all or part of what he brought into it, either at the beginning of<br />

the regime or subsequently; this stipulation, however, may<br />

not extend beyond things formally specified, or to the benefit<br />

of persons other than those named.<br />

In all cases, the contributions may be taken back only<br />

after deduction of the private debts of the spouse of the<br />

administrator which would have been paid by the community.<br />

/// - Clauses by which unequal shares in the community are<br />

assigned to the consorts<br />

208 Consorts may depart from the equal division established


96 THE FAMILY<br />

by law, by giving one of them a share less than half the<br />

community, by giving him a fixed sum, or by attributing the<br />

entire community to him.<br />

209 In the event of unequal partition, each consort bears the<br />

debts of the community in proportion to his share in the assets.<br />

Any agreement which obliges the consort whose share is<br />

so reduced to bear a greater share, or exempts him from<br />

bearing a share in the debts equal to what he takes from the<br />

assets, has no effect.<br />

210 A stipulation that gives one of the consorts only a fixed<br />

sum as his share in the community is a definitive agreement<br />

obliging the consort to pay the agreed sum, whether the<br />

community is in a good or a bad position, and whether or not<br />

the community is sufficient to pay the sum.<br />

211 If the clause establishes the definitive agreement solely<br />

with regard to the heirs of one of the consorts, that consort, if<br />

he survives, is entitled to partition by halves.<br />

212 If the entire community is attributed to the administrator,<br />

he pays all the debts.<br />

heirs.<br />

The creditors have no recourse against the spouse or his<br />

213 If the entire community is attributed to the surviving<br />

spouse of the administrator, he may accept it, and remain<br />

responsible for all the debts, or renounce it and leave the<br />

property and charges to the heirs of the administrator.<br />

214 When the consorts stipulate that the entire community<br />

will be attributed to one of them, the heirs of the other may<br />

take back from the community the contribution of the person<br />

they represent.


THE FAMILY 97<br />

IV - Community by general title<br />

215 Consorts, by their marriage contract, may establish a<br />

universal community of their property, moveable and immoveable,<br />

present and future, of all their present property<br />

alone, or of all their future property alone.<br />

§ - 3 Reserved property<br />

216 The income from the personal work of the spouse of the<br />

administrator and the moveable and immoveable property he<br />

acquires by investing that income are reserved to his administration,<br />

enjoyment and free disposal.<br />

217 However, without the consent of the administrator, the<br />

spouse of the administrator may not hypothecate or otherwise<br />

alienate the immoveables by onerous title, or alienate or<br />

hypothecate any business concern or household furniture used<br />

by the family.<br />

218 The spouse of the administrator may not dispose of<br />

reserved property, by gratuitous title inter vivos, except modest<br />

sums or customary presents, without the consent of his spouse.<br />

219 The consent given by the administrator never has the<br />

effect of committing him personally with respect to his private<br />

property.<br />

220 Articles 216 to 219 do not restrict the right of the spouse<br />

of the administrator to designate third parties as contingent<br />

owners or as beneficiaries of a retirement pension or other<br />

annuity, or of insurance of persons.<br />

221 No compensation is due by reason of the sums or<br />

premiums paid out of the reserved property if the designation<br />

is in favour of the spouse or of the children of the administrator<br />

or of the spouse.


98 THE FAMILY<br />

222 The creditors of the spouse of the administrator may sue<br />

for payment of their claims out of the reserved property.<br />

The creditors of the administrator or of the community<br />

may also do so for debts contracted in the interest of the<br />

household.<br />

223 Reserved property is included in the partition of the<br />

community.<br />

224 If the spouse of the administrator renounces the community,<br />

he keeps the reserved property free and clear of all debts<br />

other than those for which it was liable under Article 222.<br />

The same applies to his heirs and successors in the direct<br />

descending line.<br />

225 If the spouse of the administrator or his heirs without<br />

distinction accept the community and the spouse of the<br />

administrator has disposed of the reserved property, even by<br />

onerous title, but in fraud of the rights of the administrator or<br />

his heirs, any reserved property so alienated or its value on the<br />

date the community is dissolved must be restored to the<br />

community.<br />

226 Notwithstanding any agreement to the contrary, the<br />

spouse of the administrator remains subject to the obligation<br />

to contribute out of his reserved property to the expenses of the<br />

marriage, in the proportion established in Article 47.<br />

Section IV<br />

Separation as to property<br />

§ - 1 Conventional separation as to property<br />

227 The regime of conventional separation as to property is<br />

established by a simple declaration to this effect in the<br />

marriage contract.


THE FAMILY 99<br />

228 Under the regime of separation as to property, each<br />

consort has the administration, enjoyment and free disposal of<br />

his moveable and immoveable property.<br />

229 Property over which neither consort can establish his<br />

right of ownership is presumed to be held by both in undivided<br />

ownership, half by each.<br />

§ - 2 Judicial separation as to property<br />

230 Under the regime of partnership of acquests or of<br />

community, either consort may obtain separation as to<br />

property when the regime appears to be contrary to his<br />

interests or to those of the family.<br />

231 Separation as to property judicially obtained has a<br />

retroactive effect between the consorts to the day the application<br />

was made.<br />

232 The creditors of the consorts may not apply for separation,<br />

even with the consent of the consort who is their debtor.<br />

233 The creditors of a consort may intervene in the action<br />

for separation to contest it.<br />

They may also institute proceedings against separation<br />

as to property that has been pronounced or executed in fraud<br />

of their rights.<br />

234 Dissolution of the partnership of acquests or of the<br />

community effected by separation as to bed and board or by<br />

separation as to property alone does not give rise to the rights<br />

of survivorship, unless the contrary has been stipulated in the<br />

marriage contract.


100 THE FAMILY<br />

CHAPTER IX<br />

DISSOLUTION OF MARRIAGE<br />

235 Marriage is dissolved by:<br />

1. the death of either consort;<br />

2. a declaratory judgment of the death of either consort;<br />

3. a declaratory judgment of the absence of either consort;<br />

4. divorce.<br />

CHAPTER X<br />

SEPARATION AS TO BED AND BOARD, AND<br />

DIVORCE<br />

Section I<br />

General provision<br />

236 In matters of separation as to bed and board, of divorce<br />

and of homologation of an agreement in the event of de facto<br />

separation, the court considers the condition, needs and<br />

means of the consorts, the agreements made between them,<br />

and their circumstances.<br />

Section II<br />

Agreements in cases of de facto separation<br />

237 In the event of a de facto separation, the consorts may<br />

make agreements relating in particular to custody of the<br />

children, expenses of the marriage, and support, subject to<br />

Articles 76 and 77.<br />

238 No such agreement is valid, however, unless attested to<br />

in writing and homologated by the court.


THE FAMILY 101<br />

The court may refuse to homologate an agreement<br />

which it considers contrary to the interest of the family or of<br />

one of the parties.<br />

239 The court may amend a homologated agreement with<br />

the consent of both parties, or on application by either party,<br />

whenever circumstances justify this.<br />

Section III<br />

Grounds for separation as to bed and board and for divorce<br />

240 Separation as to bed and board or divorce is granted<br />

when a marriage breaks down.<br />

241 A marriage is deemed to have broken down when:<br />

1. a consort has seriously failed to execute an obligation<br />

resulting from the marriage;<br />

2. the consorts have lived apart for at least three years<br />

immediately before the application was submitted,<br />

because one consort has decided to cease cohabitation,<br />

is incurably ill, or has been condemned to prison<br />

following a criminal offence;<br />

3. the consorts have lived apart by mutual agreement for at<br />

least one year immediately before the application was<br />

submitted and agree to separation as to bed and board<br />

or to divorce.<br />

242 Separation as to bed and board or divorce is granted<br />

when one consort has not known the whereabouts of his<br />

spouse for three years immediately preceding his application,<br />

and has been unable to locate him for the whole of that time.<br />

243 Separation as to bed and board or divorce is granted,<br />

upon application by either consort, after at least one year of<br />

cohabitation, if the marriage is not consummated by reason of<br />

illness or disability.


102 THE FAMILY<br />

244 Proof of marriage breakdown must be made before the<br />

court.<br />

The admission of one party is admissible, but the court<br />

may require additional evidence.<br />

Section IV<br />

Conciliation<br />

245 Before the court rules on the merits of the case in matters<br />

of separation as to bed and board or of divorce, it must<br />

ascertain that attempts at conciliation have been made in<br />

accordance with the rules of the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

246 The court adjourns proceedings for separation as to bed<br />

and board or for divorce until a date it indicates, if it appears<br />

that:<br />

1. the parties may be reconciled or may conciliate their<br />

differences;<br />

2. separation as to bed and board or divorce would be<br />

prejudicial to the conclusion of any reasonable arrangement<br />

to ensure the maintenance of the children or of<br />

either consort;<br />

3. adjournment can avoid serious damage to either consort<br />

or to any of their children.<br />

At the same time, the court may appoint a competent<br />

person to conciliate the parties; it may also make such interim<br />

orders as it considers useful.<br />

247 No proceedings are terminated by reconciliation unless<br />

an agreement to that effect is signed by both parties and<br />

entered in the file.<br />

Nevertheless, either consort may institute another<br />

action for any cause arising after the reconciliation; in this


THE FAMILY 103<br />

case, he may avail himself of the previous causes in support of<br />

his new application.<br />

248 If, in dismissing an application for separation as to bed<br />

and board or for divorce, the court considers temporary<br />

separation favourable to renewed cohabitation, it may allow<br />

the consorts to live apart for a fixed period.<br />

Section V<br />

It then makes any accessory orders it sees fit.<br />

Provisional measures<br />

249 An application for separation as to bed and board or for<br />

divorce releases the consorts from the obligation to live<br />

together.<br />

250 The court may order either consort to leave the family<br />

residence during the proceedings.<br />

It may also authorize either consort to retain temporarily<br />

certain household furniture which until that time had been<br />

in common use.<br />

251 The court may decide as to the custody and education of<br />

the children, and as to visiting rights.<br />

It determines the contribution payable by each consort<br />

to the maintenance of the children during the proceedings.<br />

252 The court may order either consort to pay the other an<br />

appropriate amount, particularly interim support and an<br />

allowance to cover legal costs.


104 THE FAMILY<br />

Section VI<br />

Accessory measures<br />

253 The court, in ordering separation as to bed and board or<br />

divorce, disposes of any accessory applications, particularly<br />

those respecting custody and education of the children,<br />

visiting rights, support due to the spouse, and the contribution<br />

of each consort toward maintenance of the dependent children,<br />

even those of major age.<br />

254 The court may order that the sums granted as support to<br />

the spouse and to the children be paid to the spouse himself or<br />

to a trustee in periodic instalments which may be replaced or<br />

completed by one or more lump sums.<br />

255 The court, on application by a consort who is separated<br />

or divorced, may also decide on similar measures after the<br />

judgment ordering separation or divorce is rendered.<br />

256 The court, in granting a divorce or subsequently, may,<br />

according to the circumstances, declare extinguished the right<br />

of the former consorts to claim support from each other.<br />

257 Except in the case considered in the preceding article,<br />

any provisional or accessory measures ordered by the court<br />

may be reviewed whenever any new fact so justifies.<br />

258 Review may be made notwithstanding appeal.<br />

If the appeal is allowed, the judgment pronouncing<br />

upon the application for review falls, subject to a new<br />

application.


THE FAMILY 105<br />

Section VII<br />

Effects of separation as to bed and board and of divorce<br />

259 Divorce breaks the bond of marriage; divorced consorts<br />

may remarry.<br />

260 Separation as to bed and board does not break the bond<br />

of marriage; neither consort may remarry while the other is<br />

alive.<br />

Separation releases the consorts from the obligation to<br />

live together.<br />

261 Divorce carries with it dissolution of the matrimonial<br />

regime; separation as to bed and board carries with it<br />

separation as to property where applicable.<br />

262 Divorce and separation as to bed and board produce<br />

their effects on the day when the judgment is pronounced.<br />

263 Neither divorce nor separation as to bed and board<br />

affects the rights of the children.<br />

264 When the court grants a divorce or a separation as to<br />

bed and board, it rules on gifts where applicable.<br />

Neither divorce nor separation as to bed and board<br />

affects any gifts inter vivos between consorts, unless the<br />

contract provides to the contrary.<br />

However, the court may order payment of these gifts<br />

deferred for a period it determines.<br />

The court may also annul or reduce any irrevocable gifts<br />

mortis causa, taking account of the circumstances of both<br />

parties.


106 THE FAMILY<br />

265 The effects of separation as to bed and board cease upon<br />

reconciliation and reunion of the consorts.<br />

The consorts remain separate as to property, however,<br />

unless they avail themselves of Articles 76 and following.


THE FAMILY 107<br />

TITLE TWO<br />

FILIATION<br />

CHAPTER I<br />

FILIATION BY BLOOD<br />

Section I<br />

Establishment of filiation<br />

266 If a child is born during a marriage, or within three<br />

hundred days after the dissolution or annulment of the<br />

marriage, the husband of the child's mother is presumed to be<br />

the father.<br />

The de facto consort of the mother of a child born<br />

during the de facto union is presumed to be the father.<br />

267 The presumption of the husband's paternity is rebutted<br />

if the child is born more than three hundred days after the<br />

judgment ordering separation as to bed and board, unless<br />

there has been reconciliation. •<br />

268 If a child is born less than three hundred days following<br />

the dissolution or annulment of a marriage, but his mother<br />

marries again within this period, the mother's second husband<br />

is presumed the father of the child.<br />

269 If paternity cannot be determined by applying the<br />

preceding articles, paternal filiation of a child may be established<br />

by voluntary acknowledgment of paternity or by<br />

judgment.<br />

270 Paternity is acknowledged by a declaration made by a<br />

man that he is the father of the child.


108 THE FAMILY<br />

271 Maternity is acknowledged by a declaration by a<br />

woman that she has given birth to the child.<br />

272 Acknowledgment of paternity or of maternity constitutes<br />

proof against the person who made it.<br />

273 Acknowledgment also constitutes proof as regards third<br />

parties if it is indicated on the act of birth or made by a person<br />

who has contributed towards the maintenance or education of<br />

the child.<br />

Acknowledgment of paternity also constitutes proof as<br />

regards third parties if the mother declares it to be truthful;<br />

acknowledgment of maternity constitutes proof as regards<br />

third parties if consistent with the attestation of delivery or if<br />

the father declares it to be truthful.<br />

274 Acknowledgment of paternity or of maternity has no<br />

effect if it contradicts an established filiation which has not<br />

been successfully contested in court.<br />

Section II<br />

Disavowal and contestation of paternity<br />

275 The presumed father may disavow the child.<br />

The mother may also contest the paternity of the<br />

presumed father.<br />

276 Any means of evidence which can establish that the<br />

husband or the de facto consort is not the father of the child is<br />

admissible.<br />

277 An action for disavowal or for contestation of paternity<br />

must be instituted within one year after the child is born.<br />

However, this period begins to run against the husband<br />

or the de facto consort on the day when he learns of the birth.


THE FAMILY 109<br />

278 The recourse is directed against the child and against<br />

the mother or the presumed father, as the case may be.<br />

A minor is represented by an ad hoc tutor appointed by<br />

the court to which the case has been referred.<br />

279 If the presumed father or the mother dies before expiry<br />

of the period for disavowal or for contestation of paternity, the<br />

right of action is not extinguished.<br />

The heirs must exercise this right, however, within six<br />

months after the death.<br />

280 When a child has been conceived through artificial<br />

insemination, either by the husband or the de facto consort, or<br />

by a third party with the consent of both consorts or both de<br />

facto consorts, no disavowal or contestation of paternity is<br />

admissible.<br />

281 When a child has been conceived through artificial<br />

insemination by a third party, that party may never claim<br />

paternity of the child.<br />

Section III<br />

Proof of filiation<br />

282 Paternal and maternal filiation are proven by the act of<br />

birth.<br />

In the absence of that act, uninterrupted possession of<br />

status is sufficient.<br />

283 Possession is established by any adequate combination<br />

of facts which indicate the relationship of filiation between the<br />

father or the mother and the child.<br />

284 No person may claim a status contrary to that assigned


110 THE FAMILY<br />

him by his act of birth and the possession of status consistent<br />

with that act.<br />

Subject to Article 275, no person may contest the status<br />

of a person whose possession of status is consistent with his act<br />

ofbirth.<br />

285 Any interested person may contest the status of a person<br />

whose possession of status is not consistent with his act of<br />

birth.<br />

286 However, no person may contest the status of a person<br />

because that person was conceived through artificial<br />

insemination.<br />

287 Proof of filiation may be made by testimony when there<br />

is neither an act of birth nor uninterrupted possession of<br />

status, or if the child has been registered under a false name or<br />

with no mention of the name of the mother or of the father.<br />

Testimony is not admissible, however, unless there is a<br />

commencement of proof.<br />

288 Any means of evidence is admissible to contest an action<br />

concerning filiation.<br />

289 If a person unjustifiably refuses to undergo a blood test<br />

ordered by the court, the judge may draw a presumption of<br />

fact from that refusal.<br />

290 If a child dies without establishing his status, his heirs<br />

may establish it within three years after his death.


THE FAMILY HI<br />

Section IV<br />

Effects of filiation<br />

291 All children whose filiation is established have the same<br />

rights and obligations with regard to their father and mother<br />

and to the families of their parents.<br />

CHAPTER II<br />

ADOPTION<br />

Section I<br />

Conditions for adoption<br />

292 No adoption may take place except in the interest of the<br />

child and on the conditions prescribed by law.<br />

293 The following persons may adopt;<br />

1. consorts living together;<br />

2. the spouse of the child's father or mother;<br />

3. consorts separate as to bed and board, consorts separated<br />

de facto, or divorced consorts, provided they had<br />

adopted the child de facto before the separation or<br />

divorce;<br />

4. any other person of major age.<br />

294 If one of the persons adopting dies after the motion for<br />

adoption is presented, the hearing may be continued and the<br />

adoption granted.<br />

295 If the person adopting is widowed and it is clearly<br />

established that his deceased spouse had intended to adopt a<br />

child, the court may grant adoption with regard to the person<br />

adopting and his deceased spouse.


112 THE FAMILY<br />

296 A person adopting must be at least eighteen years older<br />

than the person adopted, unless the person adopted is the<br />

child of the spouse of the adopting parent.<br />

The court may dispense with this requirement, however,<br />

in the interest of the child.<br />

297 A minor may be adopted if:<br />

1. his parents have consented to the adoption or<br />

2. he has been judicially declared eligible for adoption.<br />

298 The father and the mother must both consent to the<br />

adoption if the filiation of the child is established with regard<br />

to both of them.<br />

If either parent is deceased, is unable to express his will,<br />

or is deprived of parental authority, the consent of the other<br />

parent is sufficient.<br />

299 If the filiation of the child is established with regard to<br />

only one of his parents, that parent alone consents to the<br />

adoption.<br />

300 The tutor to the person may consent to the adoption of<br />

the child if neither of the child's parents is in a position to do<br />

so.<br />

301 Neither the parents nor the tutor of a child may consent<br />

to his adoption, except after consultation with, and in the<br />

presence of, a professional duly authorized for the purpose by<br />

a social service centre.<br />

During the interview, the professional must give the<br />

father, mother or tutor, as the case may be, a form of the kind<br />

provided for in the schedule, explaining his or her rights.<br />

302 Consent to adoption entails delegation of parental


THE FAMILY 113<br />

authority to the social service centre or to the person to whom<br />

a child is given to be placed for adoption, as the case may be.<br />

303 The father, mother or tutor may withdraw his or her<br />

consent to adoption within thirty days following the date<br />

when the consent was given.<br />

The withdrawal is made in writing and addressed to the<br />

social service centre or to the person to whom the child has<br />

been given to be placed for adoption.<br />

The child must then be returned without formality or<br />

delay to the person who made the withdrawal.<br />

304 If a child is returned to either of his parents or to his<br />

tutor, even after the thirty days expire, his return is equivalent<br />

to withdrawal of consent.<br />

305 The father, mother or tutor who has not withdrawn<br />

consent within thirty days may apply to the court, within<br />

ninety days after the consent to adoption, to have the child<br />

returned. This time period is compulsory.<br />

306 The court in particular may authorize conditional return<br />

of the child to either of his parents or to his tutor for a period<br />

determined by it.<br />

In this case, it orders a social service centre to ensure<br />

supervision of the child, and when the fixed period expires, the<br />

return becomes final, unless the report is unfavourable.<br />

307 The following may be declared eligible for adoption:<br />

1. a child whose paternal filiation and maternal filiation<br />

have not been established within three months after his<br />

birth;<br />

2. a child who has neither a father nor a mother;<br />

3. a child whose care, maintenance or education has not in


114 THE FAMILY<br />

fact been assumed by either his father or his mother for<br />

more than six months;<br />

4. a child whose father or mother, in the opinion of a<br />

psychiatrist appointed by the court, suffers from a<br />

mental illness which renders that parent unfit to take<br />

care of the child, and whose other parent does not in fact<br />

assume his care, maintenance or education;<br />

5. a child whose father and mother have been deprived of<br />

parental authority.<br />

308 No application for a declaration of eligibility for<br />

adoption may be made except by the social service centre or by<br />

any person who has received the child.<br />

309 Withdrawal of consent to adoption does not constitute<br />

grounds for irreceivability of an application for a declaration<br />

of eligibility for adoption if either parent or the tutor has not<br />

in fact resumed charge of the child.<br />

310 Before declaring a child eligible for adoption, the court<br />

ascertains that it is unlikely that the child's father, mother or<br />

tutor will resume custody of him and assume his care,<br />

maintenance or education.<br />

311 When declaring a child eligible for adoption, the court<br />

confers parental authority on the social service centre or on the<br />

person entrusted with custody of the child.<br />

312 No person of major age may be adopted except by the<br />

persons who had adopted him de facto when he was a minor.<br />

The court, however, may dispense with this requirement<br />

in exceptional cases.<br />

313 If the child is ten years old, adoption may not take place<br />

without his consent, unless he is unaware of his de facto<br />

adoption and his usual behaviour towards the person adopting<br />

may be interpreted by the court as tacit consent.


THE FAMILY 115<br />

However, when a child less than fourteen years old<br />

refuses to give his consent, the court may defer adoption for a<br />

period of time which it indicates, or grant adoption notwithstanding<br />

the refusal.<br />

314 Refusal by a child fourteen years old is a bar to<br />

adoption.<br />

315 The consent provided for in the preceding articles must<br />

be in writing.<br />

It is valid even when the person who gives it is not of<br />

major age.<br />

Section II<br />

Placement for adoption and judgments<br />

316 A child whose parents or tutor have consented to his<br />

adoption, or who has been judicially declared eligible for<br />

adoption is placed for adoption when he is in fact entrusted to<br />

a person who wishes and is authorized by law to adopt him.<br />

317 Any person other than a social service centre who places<br />

a child for adoption must, within ten days after the child is so<br />

placed, advise the social service centre at the place where that<br />

person has his domicile, and the Minister of Social Affairs.<br />

318 Subject to Articles 303 and 305, no child may be<br />

returned to his original family once he has been placed for<br />

adoption.<br />

Likewise, filial relationship may not be established<br />

between a child placed for adoption and his parents by blood.<br />

319 If placement for adoption terminates, or if the court<br />

refuses to grant the adoption, the effects of the placement<br />

cease.


116 THE FAMILY<br />

320 As long as a child is placed for adoption, he is under the<br />

supervision of the social service centre.<br />

321 Adoption of a minor may not be granted unless he has<br />

lived with the person adopting for at least six months<br />

immediately preceding presentation of the motion, and unless<br />

a written report from a social service centre has been filed.<br />

The report contains an assessment of the qualifications<br />

and aptitudes required of the person adopting to raise the<br />

child suitably, and of the manner in which the child has been<br />

treated by the person adopting and by that person's family.<br />

The court may require any other evidence it deems<br />

necessary.<br />

Section III<br />

Effects of adoption<br />

322 Adoption has effect from the date of the final judgment<br />

granting it.<br />

323 In the case provided for in Article 294, the adoption has<br />

effect upon presentation of the motion.<br />

324 Adoption confers on the adopted person a filiation<br />

which replaces his original filiation.<br />

The person adopted ceases to belong to his original<br />

family, subject to any impediments to marriage.<br />

325 Adoption creates, between the person adopting and the<br />

adopted person, the same rights and obligations as exist<br />

between parents and their children.<br />

An adopted person also has the same rights and obligations<br />

with regard to the family of the person adopting as a<br />

child whose filiation is established.


THE FAMILY 117<br />

326 Where a child is adopted by the spouse of his father or of<br />

his mother, the court, where applicable, may decide that the<br />

child will retain his successoral rights in his original family.<br />

327 In the same cases, the court may grant visiting rights to<br />

members of the original family if it finds this favourable to the<br />

interest of the child.<br />

The court may amend this measure at any time.<br />

328 Adoption by the spouse of the father or mother of a<br />

child does not break the bond of filiation established between<br />

the adopted person and the parent whose spouse is the person<br />

adopting.<br />

329 Subject to Articles 326, 327 and 328, the parents, tutor<br />

or guardian of the adopted person lose their rights and are<br />

discharged from their duties established by law regarding that<br />

person, save, where applicable, the obligation to render<br />

account.<br />

330 When a second application for adoption is granted, the<br />

effects of the preceding adoption terminate, save with respect<br />

to acquired rights.<br />

Section IV<br />

Confidentiality, offences, and penalties<br />

331 All court files, records of social service centres, and<br />

documents respecting adoption sent to the Minister of Social<br />

Affairs or the Public Curator are confidential, notwithstanding<br />

any law to the contrary.<br />

332 No person may have access to or obtain extracts from<br />

them unless, upon motion by a person who establishes an<br />

interest compatible with the best interest of the adopted<br />

person, the court which rendered the judgment of adoption


118 THE FAMILY<br />

authorizes that person to do so in a written judgment deposited<br />

in the files.<br />

333 A person who knowingly infringes any provision of this<br />

section respecting the confidential nature of any proceedings<br />

or of any record of adoption, or violates the secrecy of the<br />

proceedings or record, is guilty of an offence and liable, on<br />

summary conviction, in addition to payment of the costs, to a<br />

fine not exceeding one thousand dollars or to imprisonment<br />

for not more than one year, or to both penalties together.<br />

334 A person who gives or receives, or agrees to give or<br />

receive, directly or indirectly, any payment, benefit or reward<br />

for the adoption of a child, or with a view to procuring a child<br />

for any person or to assisting in placing a child for adoption, is<br />

guilty of an offence and liable, on summary conviction, in<br />

addition to payment of the costs, to a fine not exceeding two<br />

thousand five hundred dollars, or to imprisonment for not<br />

more than two years, or to both penalties together.<br />

The preceding paragraph does not apply to contributions<br />

made to a social service centre.<br />

This article does not apply when a person related to a<br />

child pays or agrees to pay sums of money for the care,<br />

maintenance or education of the child to the person adopting<br />

or to any person with whom the child is placed for adoption.<br />

335 A person who places a child for adoption and fails to<br />

give the Minister of Social Affairs or the social service centre<br />

the notice provided for in Article 317 is guilty of an offence<br />

and liable, on summary conviction, in addition to payment of<br />

the costs, to a fine not exceeding two hundred dollars.


THE FAMILY 119<br />

TITLE THREE<br />

THE OBLIGATION OF SUPPORT<br />

336 An obligation of support exists between:<br />

1. consorts;<br />

2. relatives in the direct line.<br />

337 Divorced consorts and persons whose marriage has been<br />

annulled owe each other support, unless the court decides<br />

otherwise.<br />

338 De facto consorts owe each other support as long as they<br />

live together.<br />

However, if exceptional circumstances justify it, the<br />

court may order a de facto consort to pay support to his spouse<br />

once they no longer live together.<br />

339 Proceedings for the support of a minor may be instituted<br />

by his father, mother or tutor, or by any person or institution<br />

who or which has custody of him.<br />

340 Support is awarded in proportion to the needs of the<br />

person who claims it and the means of the person who owes it.<br />

After the plaintiff proves the extent of his needs, the<br />

defendant bears the burden of proving that he is unable to<br />

meet them.<br />

341 The court may award provisional support for the<br />

duration of the proceedings to the person entitled to it.<br />

342 Support is payable in periodic instalments which may be<br />

replaced or completed by one or more lump sums, on conditions<br />

which the judge deems reasonable, having regard to the<br />

circumstances.


120 THE FAMILY<br />

343 The court may order a person who owes support to<br />

furnish security, beyond the judicial hypothec, for payment of<br />

that support.<br />

Notwithstanding Article 368 of the Book on Property, it<br />

may also order that any property of the person who owes<br />

support be affected by the judicial hypothec, and appoint a<br />

person to be put in possession of the property.<br />

344 If the debtor offers to take the person entitled to support<br />

into his home, he may be dispensed from paying all or a part<br />

of the support, if circumstances so justify.<br />

345 The creditor may exercise his recourse against one of the<br />

debtors or against several of them simultaneously.<br />

The debtor who has not been sued may be impleaded.<br />

346 The court fixes the amount of support to be paid by each<br />

of the debtors, taking account of the circumstances.<br />

The debtor who has been ordered to pay has a recourse<br />

against a debtor who has not been impleaded.<br />

347 Support awarded by judgment may be reviewed whenever<br />

circumstances so justify.<br />

The review may be made notwithstanding appeal; if the<br />

appeal is allowed, the judgment pronouncing upon the<br />

application for review falls, subject to a new application.<br />

348 Support cannot be transferred or seized, except as<br />

regards debts for support.<br />

It may be seized, however, by any person who has<br />

provided the recipient of the support with the necessities of life<br />

or has paid debts for support on behalf of the recipient.


THE FAMILY 121<br />

349 Support may be claimed only for the twelve months<br />

preceding the application.<br />

Arrears of support granted by judgment are prescribed<br />

by three years.<br />

The debtor from whom these arrears are claimed may<br />

plead a change in his condition or in that of his creditor after<br />

judgment.


THE FAMILY 123<br />

TITLE FOUR<br />

PARENTAL AUTHORITY<br />

350 Every child is subject to the authority of his parents until<br />

he becomes of age.<br />

351 Authority is vested in parents so that they may execute<br />

their obligations towards their children.<br />

352 Every child, regardless of his age, owes respect to his<br />

parents.<br />

353 Parents have the rights and duties of custody, supervision<br />

and education of their children.<br />

They must maintain their children.<br />

They represent them in all civil acts.<br />

354 Parents exercise parental authority together, unless it<br />

has been judicially attributed to one of them.<br />

If either parent dies, or if for any reason he is not able to<br />

express his will, the other parent exercises the authority.<br />

355 A parent who performs alone an act of authority<br />

concerning the person of a child is presumed, with regard to<br />

third parties in good faith, to be acting with the consent of the<br />

other parent.<br />

356 Parents may entrust other persons with the custody,<br />

education or supervision of their children, subject to the<br />

parents' right to resume it at any time.<br />

357 Either parent may refer to the court any question<br />

relating to the exercise of parental authority.


124 THE FAMILY<br />

The court then orders any measures it deems<br />

appropriate.<br />

358 Parents may not disrupt any personal relationship<br />

between their child and his grandparents, except for serious<br />

reasons.<br />

In the absence of agreement between the parties, these<br />

relationships are determined by the court.<br />

In exceptional circumstances, the court may grant<br />

correspondence rights or visiting rights to other persons,<br />

whether or not they are related.<br />

359 A parent who is found guilty of a criminal offence<br />

against the child's person, who seriously neglects his duties<br />

towards the child, or who manifestly misuses his authority,<br />

may be deprived of all or part of his parental authority.<br />

360 A child alone, or any interested person including the<br />

Minister of Justice, may submit a motion for deprivation or<br />

withdrawal.<br />

The motion must be served on both parents.<br />

361 Deprivation entails for either parent loss of the right to<br />

parental authority and, for the child, exemption from the<br />

obligation to provide support.<br />

It extends to all minor children already born at the time<br />

of the judgment, unless the court decides otherwise.<br />

362 The court which orders deprivation appoints a person to<br />

exercise parental authority.<br />

363 In lieu of deprivation, the court may order partial<br />

withdrawal of the rights derived from parental authority.<br />

It appoints a person to exercise these rights, if necessary.


THE FAMILY 125<br />

364 Withdrawal entails partial loss of the right to parental<br />

authority; the loss is restricted to the attributes specified by<br />

the court.<br />

The father or the mother retains authority over the child<br />

and exercises the attributes of that authority consistent with<br />

the application of the measure ordered by the court.<br />

Withdrawal affects only the child with respect to whom<br />

the application is made.<br />

365 The child retains all his rights with regard to that parent<br />

who has been deprived of authority or whose rights have been<br />

withdrawn.<br />

366 A parent who has been deprived of his rights, or some of<br />

whose rights have been withdrawn, may have all or some of<br />

the rights which had been withdrawn from him restored,<br />

provided he alleges new circumstances, subject to the provisions<br />

governing adoption.<br />

367 If the health, safety or development of a child is in<br />

danger, or if the conditions of his education are seriously<br />

compromised, the court, either proprio motu or on a motion<br />

submitted by the child alone or by any interested person<br />

including the Minister of Justice, may order all protective<br />

measures deemed appropriate, even during the proceedings.<br />

368 The court must keep the child in his family home, to the<br />

extent that this is possible.<br />

If the child must be removed from his home, the court<br />

may entrust him to the parent who did not have custody of<br />

him, to a member of the family, to a trustworthy third party, to<br />

a foster home, or to a reception centre.<br />

369 Whenever any protective measure is taken with regard<br />

to a child, the court appoints a qualified person or an<br />

appropriate service to assist and advise the family of the child


126 THE FAMILY<br />

and, where applicable, the person entrusted with him and to<br />

follow his development, and to submit periodic reports to the<br />

court.<br />

370 The court, at any time, either proprio motu or on a<br />

motion by the child alone or by any interested person<br />

including the Minister of Justice, may amend or revoke any<br />

judicial decision concerning the person of a child.


BOOK THREE<br />

SUCCESSION


SUCCESSION 129<br />

TITLE ONE<br />

PROVISIONS COMMON TO EVERY<br />

SUCCESSION<br />

CHAPTER I<br />

GENERAL PROVISIONS<br />

1 A succession devolves by death alone.<br />

2 A succession devolves at the domicile of the deceased.<br />

3 An heir is a person to whom an intestate or a testamentary<br />

succession devolves.<br />

A testamentary heir is also called a legatee; an heir to<br />

an intestate succession is also called a legal heir.<br />

4 In determining succession, the law considers neither the<br />

origin nor the nature of property.<br />

All the property constitutes a single inheritance which is<br />

transmitted and divided according to the same rules or as<br />

directed by the deceased.<br />

CHAPTER II<br />

QUALITIES REQUIRED TO INHERIT<br />

5 Only persons who it is certain exist at the time the<br />

succession devolves may inherit.<br />

6 When several persons entitled to inherit from each other<br />

die and it is not possible to determine which one survived the<br />

other or others, they are deemed to have died simultaneously.<br />

The succession of each devolves to those heirs who


130 SUCCESSION<br />

would have been entitled to receive it in place of the persons<br />

who so died.<br />

7 The following persons are unworthy of inheriting, and,<br />

as such, are excluded from the succession:<br />

1. a person found guilty of making an attempt on the life of<br />

the deceased;<br />

2. a person found guilty of cruelty, injury or serious offence<br />

with regard to the deceased;<br />

3. a person who has concealed, altered or destroyed the<br />

will of the deceased without the testator's knowledge;<br />

4. a person who has hindered the deceased in the writing,<br />

amendment or revocation of his will;<br />

5. a person deprived of parental authority over his child,<br />

with respect to that child's succession.<br />

8 Only an heir who has an interest may invoke the<br />

unworthiness of another heir.<br />

9 The demand must be made within one year after the<br />

death or within one year from the day when the plaintiff heir<br />

could have become aware of the cause of unworthiness.<br />

10 Unworthiness cannot be invoked against an heir who<br />

benefits from a will made by the deceased, if he knew the cause<br />

of the unworthiness and the identity of the unworthy person.<br />

11 An unworthy heir who has received property from a<br />

succession is considered an apparent heir and deemed a<br />

possessor in bad faith.<br />

12 Descendants of an unworthy heir are not excluded from<br />

the succession by reason of the fault of the heir.<br />

13 Consorts do not inherit from each other if they are<br />

separate as to bed and board and have not been reconciled, or


SUCCESSION 131<br />

if they are divorced, unless otherwise provided in a subsequent<br />

will.<br />

14 A consort in good faith inherits from his spouse if the<br />

marriage is annulled after the death of the spouse.<br />

CHAPTER III<br />

TRANSMISSION OF SUCCESSION<br />

15 When an heir under an intestate succession inherits, he<br />

is seized of right of the property of the deceased, subject to the<br />

provisions regarding administration of successions.<br />

He is responsible for the debts and charges, in accordance<br />

with Title Two.<br />

16 The Crown in right of the province is not seized of right,<br />

but must be put in possession judicially.<br />

17 Legatees by any title are also seized, by the death of the<br />

testator or by the event which gives effect to the legacy, of the<br />

property bequeathed, in the condition in which it then is,<br />

along with all necessary accessories which are part of it, or of<br />

the right to obtain payment of and to institute any action<br />

resulting from the legacy, without being obliged to obtain<br />

legal delivery.<br />

They have possession thereof, subject to the testamentary<br />

provisions regarding administration of the succession.<br />

18 A petition to inherit is subject to a twenty-five-year<br />

prescription, from the opening of the succession, unless the<br />

heir is deprived of his right to inherit before that period<br />

expires.<br />

19 An apparent heir must return to the true heir everything<br />

he has received from the succession.


132 SUCCESSION<br />

20 Acts of administration, and acts of alienation by onerous<br />

title to the benefit of a third party in good faith, performed<br />

by an apparent heir, may be set up against the true heir.<br />

Subject to the rules governing publication of immoveable<br />

rights, acts of alienation by gratuitous title performed<br />

by an apparent heir may not be set up against the true<br />

heir.<br />

21 An apparent heir in good faith must restore to the true<br />

heir only the price he has received from the alienation, or the<br />

property acquired through reinvestment of the price.<br />

22 An apparent heir in bad faith must pay the true heir the<br />

value, at the time the judgment is rendered, of the property<br />

alienated; he is also responsible for damages, where<br />

applicable.


SUCCESSION 133<br />

TITLE TWO<br />

INTESTATE SUCCESSION<br />

CHAPTER I<br />

DEVOLUTION OF SUCCESSIONS<br />

23 There are two kinds of intestate succession: regular<br />

successions, which devolve by law to a spouse and to relatives,<br />

and irregular successions, which, in the absence of a spouse<br />

and of relatives, devolve to the Crown in right of the province.<br />

Section I<br />

Regular succession<br />

24 Regular successions devolve to the spouse, descendants,<br />

ascendants and collaterals of the deceased, in the order and<br />

according to the rules determined below.<br />

25 Successions devolve to relations by reason of ties of<br />

blood or of adoption, whether or not these ties result from a<br />

marriage.<br />

26 Proximity of relationship is established by the number<br />

of generations.<br />

27 Each generation forms one degree.<br />

The succession of degrees forms the line.<br />

28 The direct line is the succession of degrees between<br />

persons who descend one from another.<br />

The collateral line is the succession of degrees between<br />

persons who do not descend one from another, but who<br />

descend from a common ancestor.


134 SUCCESSION<br />

29 The direct descending line connects a person with his<br />

descendants; the direct ascending line connects him with his<br />

ancestors.<br />

30 In the direct line, the number of degrees is equal to the<br />

number of generations between the heir and the deceased.<br />

31 In the collateral line, the number of degrees is equal to<br />

the number of generations between the heir and the common<br />

ancestor, and between the common ancestor and the deceased.<br />

Section II<br />

Representation<br />

32 Representation is a fiction of law the effect of which is to<br />

attribute to a representative the place, degree and rights of the<br />

person represented.<br />

33 There is no limit to representation in the direct descending<br />

line.<br />

Representation is allowed whether the descendants of a<br />

child of the deceased compete with his other children, or<br />

whether the descendants are in equal or unequal degrees in<br />

relation to each other.<br />

34 Representation does not take place in favour of ascendants;<br />

the nearest in each line excludes the more distant.<br />

35 In the collateral line, representation always takes place<br />

in favour of the descendants of the brothers and sisters of the<br />

deceased, whether they compete with the brothers and sisters<br />

or whether they are in equal or unequal degrees in relation to<br />

each other.<br />

36 Representation takes place when the person represented<br />

has died previously or simultaneously, when he is unworthy,<br />

or when he has been declared absent.


SUCCESSION 135<br />

37 No person who has renounced a succession may be<br />

represented, but he may represent the person whose succession<br />

he has renounced.<br />

38 In all cases where representation is accepted, partition is<br />

effected by roots.<br />

If one root has several branches, subdivision is also<br />

made by roots in each branch, and the members of the same<br />

branch share among themselves by heads.<br />

39 In addition to what he must return, the representative<br />

must return to the succession of the deceased that which the<br />

person represented would have had to return, even if he<br />

renounced the succession of the represented person.<br />

Section III<br />

Order of devolution of succession<br />

40 When there is no issue, a consort inherits alone from his<br />

spouse, even if the spouse is a minor.<br />

41 When a deceased leaves descendants, the succession<br />

devolves to his spouse, who may opt to inherit the ownership<br />

of half the succession or the usufruct of all of it.<br />

The descendants inherit the remainder.<br />

42 De facto consorts inherit from each other in the same<br />

way as married consorts, even if the deceased has descendants,<br />

but without a reserve share.<br />

However, de facto consorts do not inherit from one<br />

another when one of them has a spouse who can inherit.<br />

43 If there is no spouse, the children or their descendants<br />

inherit alone from their ascendants.


136 SUCCESSION<br />

44 Descendants who are all of the same degree and in their<br />

own right inherit in equal portions and by heads.<br />

When all or some of them come by representation, they<br />

inherit by roots.<br />

45 If there are no spouse and surviving issue, half of the<br />

succession devolves to the parents of the deceased or to his<br />

surviving parent, and the other half devolves to his brothers<br />

and sisters or to their descendants.<br />

46 If there are no spouse, descendants and brothers and<br />

sisters or their descendants, the entire succession devolves to<br />

the parents of the deceased, or to the surviving parent.<br />

47 Parents inheriting from their deceased children share<br />

equally.<br />

If only one of them inherits, he also receives the share<br />

which would have devolved to the other.<br />

48 When there are no spouse, issue or parents, the entire<br />

succession devolves to the brothers and sisters of the deceased,<br />

or to their descendants.<br />

49 The share which devolves to the brothers and sisters is<br />

divided among them equally, provided they are all born of the<br />

same union.<br />

If they are born of different unions, the portion is<br />

divided in half between the paternal line and the maternal line<br />

of the deceased: persons fully related by blood partake in both<br />

lines and those half related by blood partake each in his own<br />

line.<br />

If the brothers and sisters or their descendants are in one<br />

line only, they inherit the entire succession to the exclusion of<br />

all relations in the other line.


SUCCESSION 137<br />

50 When there are no spouse, issue, parents, brothers or<br />

sisters or their descendants, one-half of the succession devolves<br />

to the other ascendants and one-half devolves to the<br />

other collaterals.<br />

When there are no ascendants, the other collaterals<br />

inherit the entire succession.<br />

When there are no collaterals, the other ascendants<br />

inherit the entire succession.<br />

51 The share devolving to the ascendants of the deceased,<br />

other than his parents, is divided in half between the ascendants<br />

in the paternal line and those in the maternal line.<br />

The ascendant most closely related takes the portion<br />

accruing to his line, to the exclusion of all others.<br />

Ascendants of the same degree succeed by heads in the<br />

same line.<br />

52 The share which devolves to the collaterals other than<br />

the brothers and sisters and their descendants is divided in<br />

half between the closest collaterals in the paternal line and<br />

those in the maternal line.<br />

53 Among these collaterals, the closest in each line excludes<br />

all the others.<br />

Those who are of the same degree share by heads.<br />

54 If there are no relations within the degree qualified to<br />

inherit in one line, the relations in the other line inherit the<br />

entire succession, whether they are ascendants or collaterals.<br />

55 Relations beyond the twelfth degree do not inherit.


138 SUCCESSION<br />

Section IV<br />

Irregular succession<br />

56 If there are no spouse and no relations within the degree<br />

qualified to inherit, the Crown in right of the province inherits<br />

the succession.<br />

The Crown is only liable for debts not exceeding the<br />

assets of the succession.<br />

57 The Crown obtains possession in the manner prescribed<br />

in the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

58 When the prescribed rules and formalities have not been<br />

complied with, the regular heirs, if any appear, may claim the<br />

property, or damages.<br />

CHAPTER II<br />

THE SPOUSES RESERVED SHARE<br />

Section I<br />

Attribution of the reserve<br />

59 A spouse by marriage is entitled to a reserve upon<br />

inheriting.<br />

The reserve, which constitutes a successoral right, is a<br />

share, as determined below, of the mass established in<br />

accordance with Articles 65 and 66.<br />

Any derogatory provision is without effect, unless<br />

contained in a marriage contract.<br />

60 When the deceased leaves no children, the reserve is<br />

one-half in ownership.


SUCCESSION 139<br />

When he leaves children, the reserve is one-quarter in<br />

ownership.<br />

61 A spouse with a reserve may not demand payment of the<br />

reserve in kind, except in the case provided for in Article 194.<br />

62 The reserve of the spouse may be replaced by the legacy<br />

of a life usufruct, or of the exclusive benefit of a trust of the<br />

entire mass, as determined according to Articles 65 and 66, in<br />

his favour, if the deceased leaves no children, or of half of the<br />

mass, if he leaves children, provided there are no conditions<br />

attached to the legacy.<br />

Section II<br />

Disposable portion and reduction of gifts and legacies<br />

63 Liberalities made by the deceased, either inter vivos<br />

during the three years preceding his death or mortis causa,<br />

which affect the reserve, may be reduced at the time the<br />

succession devolves, according to the conditions and in the<br />

manner determined below.<br />

The same applies to gifts whose term is the death of the<br />

donor, even if they are made more than three years before the<br />

death.<br />

64 Only the spouse with a reserve, or his heirs, may apply<br />

for reduction.<br />

The creditors of the deceased may not apply for such a<br />

reduction or benefit from it.<br />

65 To determine whether a reduction is applicable, a mass<br />

is formed of all the property of the succession.<br />

Once the debts are deducted, the property which has<br />

been disposed of by gift under Article 63 is fictitiously added


140 SUCCESSION<br />

to the mass, according to its condition at the time of the gift<br />

and its value at the time of the death.<br />

The amount which could have been disposed of by the<br />

deceased is calculated out of the whole.<br />

66 A liberality in usufruct, in trust or as a life annuity is<br />

counted in terms of its capital value at the time of the death.<br />

Money payable under a retirement pension or other<br />

annuity or under a contract of insurance of persons is also<br />

included in the mass if it would have been included in it had<br />

no contingent owner or beneficiary been designated in the<br />

three years preceding the death.<br />

67 Unless they have been manifestly exaggerated with<br />

regard to the means of the disposer, the cost of food, maintenance,<br />

education and apprenticeship, the usual installation<br />

expenses, wedding costs and customary presents are not<br />

included in the mass described in Articles 65 and 66.<br />

68 An alienation made with no obligation to repay, or with<br />

a reserve of usufruct, benefiting a descendant, is presumed to<br />

be a gift.<br />

A spouse with a reserve who has consented to the<br />

alienation may not apply to have it reduced.<br />

69 An alienation, hypothec or charge granted by the<br />

deceased in return for a counterpart out of proportion with the<br />

value of the property at the time of the grant is presumed to be<br />

a gift, insofar as the value exceeds the price actually paid.<br />

70 Gifts inter vivos are reduced only when the value of all<br />

the property included in testamentary dispositions has been<br />

exhausted. If such a reduction is applicable, it is made<br />

beginning with the most recent gift, going from the most<br />

recent to the first.


SUCCESSION 141<br />

Money exigible by a designated beneficiary under an<br />

insurance contract is deemed a legacy for the purposes of<br />

establishing the order and mode of reduction.<br />

71 When the value of the gifts inter vivos exceeds or is equal<br />

to the disposable portion, the legatees cannot receive their<br />

legacies.<br />

72 When the testamentary liberalities exceed either the<br />

disposable portion or that part of the portion remaining after<br />

the value of the gifts inter vivos is deducted, the legacies are<br />

reduced pro rata, unless the testator has provided to the<br />

contrary, without distinction between universal legacies and<br />

particular legacies, nor, with regard to particular legacies,<br />

between legacies of sums of money and legacies of specific<br />

things.<br />

73 The testator may determine, in particular, an order of<br />

preference for payment of the legacies, or prescribe the order<br />

or proportion of the reduction.<br />

74 Reduction of gifts inter vivos may not be claimed in<br />

kind.<br />

It applies only to the value of the property given which<br />

exceeds the disposable portion.<br />

75 Any excess must be paid at the time of partition.<br />

However, if the object of the gift is an immoveable, or a<br />

professional, commercial, industrial or other entreprise, a term<br />

may be granted for payment of all or part of the amount due,<br />

in accordance with the conditions determined in Article 199.<br />

The same applies if the gift concerns household furniture<br />

which has been used by both the deceased and the<br />

donee.


142 SUCCESSION<br />

76 The sum which the donee must pay in order to fulfil the<br />

reserve bears interest from the time of the death.<br />

Section III<br />

Imputation of liberalities made to spouses<br />

77 A legacy made to a spouse with a reserve is deducted<br />

from the reserve.<br />

The spouse must also deduct from his reserve any gifts<br />

mortis causa made by marriage contract, and any money<br />

payable to him under insurance contracts entered into by the<br />

deceased.<br />

78 A gift stipulated to be an advance on the inheritance of a<br />

spouse with a reserve is deducted from his reserve.<br />

A gift made to a spouse with a reserve, with a stipulation<br />

that it is not to be included in his share of the succession, is not<br />

deducted from his reserve unless it was made within three<br />

years preceding the death.<br />

CHAPTER III<br />

CONTINUATION OF THE OBLIGATION OF<br />

SUPPORT<br />

79 The persons to whom the deceased owed support may<br />

claim support from their debtor's succession, even though<br />

they may be heirs and even though the right to support had<br />

not actually been exercised before the death.<br />

80 Support must on pain of forfeiture be claimed within six<br />

months after the death.<br />

81 Support is paid only out of the net assets of the succession,<br />

after the reserve is deducted<br />

82 The provisions of the


SUCCESSION 143<br />

the obligation of support apply as far as possible to the<br />

obligation of support governed by this chapter.<br />

CHAPTER IV<br />

ACCEPTANCE AND RENUNCIATION OF<br />

SUCCESSION<br />

Section I<br />

The right of option and the prior right to take inventory and<br />

to deliberate<br />

83 No one is bound to accept a succession which devolves<br />

to him.<br />

84 Any succession may be accepted either purely and<br />

simply or with benefit of inventory.<br />

85 The succession which devolves to a person under<br />

tutorship may be accepted by the tutor only with benefit of<br />

inventory unless the succession obviously shows a deficit, in<br />

which case he may renounce.<br />

86 Acceptance or renunciation prior to the time the succession<br />

devolves has no effect, unless made in a marriage<br />

contract.<br />

87 The heir may not be compelled to make a decision until<br />

six months from the time the succession devolves to him.<br />

No judgment may be obtained against the heir as such<br />

during this period, unless he has made his acceptance evident.<br />

88 Even after the expiry of the period determined in the<br />

preceding article, the heir retains the right either to accept<br />

with benefit of inventory or to renounce, provided he has not<br />

performed any act entailing his pure and simple acceptance,


144 SUCCESSION<br />

or provided no judgment having the force ofres judicata has<br />

been rendered against him as a pure and simple heir.<br />

89 After the expiry of the period provided in Article 8 7, and<br />

on proceedings instituted by any interested person, a judgment<br />

may be rendered against the heir as a pure and simple<br />

heir, unless the court grants him an additional period.<br />

An heir who has neither renounced nor accepted with<br />

benefit of inventory before the expiry of the period granted<br />

him by the court is deemed to have accepted the succession<br />

purely and simply.<br />

90 When a spouse is deemed to have accepted a succession,<br />

and descendants are involved, he may claim only a share in<br />

ownership.<br />

91 If the heir has not been sued and has neither accepted<br />

nor renounced within five years from the day he became aware<br />

of his right to inherit, he is deemed to have renounced his right<br />

to inherit.<br />

92 Whenever the person to whom a succession devolves<br />

dies without having made a decision, his heirs may exercise<br />

the option in his stead.<br />

Each heir exercises his right of option separately with<br />

regard to his share.<br />

To do so, the heirs have a new six-month period<br />

beginning when their predecessor dies.<br />

93 Acceptance or renunciation may be impugned by the<br />

heir on the grounds provided in the Book on Obligations,<br />

particularly if a will is discovered which was unknown when<br />

the heir made his choice.<br />

94 When an heir accepts a succession with benefit of<br />

inventory, or renounces, within the period provided in Article


SUCCESSION 145<br />

87, the lawful expenses incurred before the acceptance or<br />

renunciation are borne by the succession.<br />

When the acceptance with benefit of inventory, or the<br />

renunciation, takes place only after the period expires, the<br />

court may decide that those expenses will also be chargeable<br />

to the succession.<br />

95 Any interested person may apply to the court to have<br />

seals affixed, an inventory made, a sequestrator appointed, or<br />

any other order rendered which is necessary to preserve his<br />

rights.<br />

96 Conservatory measures benefit all the creditors and<br />

heirs of the deceased and create no right of preference among<br />

them.<br />

Saving the case provided for in Article 131, when the<br />

moveable property of the succession has been the object either<br />

of conservatory measures or of seizures or other measures of<br />

execution, no payment may be made out of the moveable<br />

property to the creditors and legatees of the deceased before<br />

the expiry of three months from the day the measure was<br />

ordered.<br />

In the event of alienation of moveable property, the<br />

right of the creditors and legatees may be exercised against the<br />

price as long as it remains unpaid.<br />

97 The costs of seals, inventory and accounting are chargeable<br />

to the succession.<br />

The same applies to costs of security to be furnished by<br />

the beneficiary heir, when so ordered unless he is guilty of a<br />

fault.<br />

98 Any heir or creditor may consult the inventory and may<br />

obtain a copy of it at his own expense.


146 SUCCESSION<br />

99 Letters of verification may be obtained whenever an<br />

intestate succession devolves in Quebec and includes property<br />

situated elsewhere, or debts due by persons not residing in<br />

Quebec.<br />

The procedure in such a case is governed by the <strong>Code</strong> of<br />

<strong>Civil</strong> Procedure.<br />

Section II<br />

Pure and simple acceptance<br />

100 Acceptance renders irrevocable the transmission of a<br />

succession which takes place of right at the time of death.<br />

101 Acceptance is express or tacit.<br />

102 Acts respecting custody of the property of a succession,<br />

and particularly payment of funeral expenses and of the costs<br />

incurred during the final illness, do not alone entail acceptance<br />

of the succession.<br />

Acts rendered necessary by exceptional circumstances,<br />

which the heir has performed in the interest of the succession,<br />

do not entail acceptance.<br />

103 If a succession includes moveable property that is<br />

perishable or costly to preserve, the heir may sell it by mutual<br />

agreement, and no acceptance on his part may be inferred.<br />

104 An heir who transfers his rights in a succession by<br />

gratuitous or onerous title is deemed to have accepted the<br />

succession.<br />

The same rule applies with respect to:<br />

1. renunciation, even by gratuitous title, in favour of one or<br />

more of his coheirs;


SUCCESSION 147<br />

2.renunciation, even in favour of all his coheirs without<br />

distinction, when he receives payment for his<br />

renunciation.<br />

105 An heir who has abstracted or concealed property of a<br />

succession and, in particular, who knowingly and in bad faith<br />

has failed to include the property in the inventory, is deemed a<br />

pure and simple heir, notwithstanding any renunciation or<br />

acceptance with benefit of inventory, without prejudice to the<br />

penalties and recourses provided in this <strong>Code</strong>.<br />

106 An heir who claims to have relieved the administrator of<br />

the succession or the testamentary executor of his obligation to<br />

make inventory is ipso facto deemed to have accepted the<br />

succession.<br />

Section III<br />

Renunciation<br />

107 An heir who has not accepted a succession may renounce<br />

it.<br />

108 Except in the case provided for in Article 91, renunciation<br />

of a succession may not be presumed.<br />

109 Renunciation is effected by notarial deed en minute or<br />

by a judicial declaration which is recorded by the court.<br />

110 An heir who renounces is deemed never to have been an<br />

heir.<br />

The succession devolves as if the person renouncing had<br />

never existed.<br />

111 If the person renouncing is the sole heir in his degree or<br />

if all coheirs renounce, their descendants come in their own<br />

right and inherit by heads.


148 SUCCESSION<br />

112 Until the term in Article 91 expires, an heir who has<br />

renounced a succession may still accept it, unless it has<br />

already been accepted by another person entitled to it.<br />

Acceptance is made by notarial deed en minute or by<br />

judicial declaration, which is recorded by the court.<br />

The heir takes the succession in the state in which it then<br />

is, and without prejudice to the rights acquired by third parties<br />

to the property in it.<br />

113 If a person renounces to the prejudice of the rights of his<br />

creditors, the court may authorize them to accept the succession<br />

in the place of their debtor.<br />

The creditors may also be authorized to accept the<br />

succession if their debtor has fraudulently allowed the term<br />

specified in Article 91 to expire.<br />

In both cases, their action must be instituted within<br />

three years following the renunciation, or following expiry of<br />

the term provided for in Article 91.<br />

114 The acceptance has effect only in favour of creditors<br />

who have applied for it, and only up to the amount of their<br />

claims.<br />

It has no effect in favour of the heir who has renounced.<br />

Section IV<br />

Acceptance with benefit of inventory<br />

115 Acceptance with benefit of inventory is made by notarial<br />

deed en minute.<br />

116 An heir who accepts with benefit of inventory is never<br />

excluded by one who offers to accept purely and simply.


SUCCESSION 149<br />

117 An heir forfeits the benefit of inventory if he confounds<br />

the property of the succession with his own, except to the<br />

extent that they were already confounded before the death, as<br />

in the case of cohabitation.<br />

118 An inventory of the property of the succession must be<br />

made before or after acceptance with benefit of inventory.<br />

119 The beneficiary heir who has not already done so must<br />

make an inventory within two months of his acceptance,<br />

unless the court grants him another term; failing this, he is<br />

deemed to have accepted purely and simply.<br />

120 The inventory must include a faithful and accurate list<br />

of all property of the succession, subject to the following<br />

reservations:<br />

1. the personal effects, clothing, furniture and other objects<br />

in current use by the deceased need not be listed or<br />

described individually, unless they include items whose<br />

fair market value at the time of death exceeds one<br />

thousand dollars; these must be listed individually;<br />

2. universalities, such as commercial and other enterprises,<br />

their accessories and the rights attached to them are<br />

validly described if the reference made is sufficient for a<br />

bulk sale, provided, however, that each immoveable is<br />

identified individually.<br />

121 Notice of closure of the inventory must be registered<br />

where the succession devolved.<br />

It must indicate the place where interested persons may<br />

consult the inventory.<br />

122 The beneficiary heir is not bound to provide security,<br />

unless the court so orders on motion by any interested person,<br />

who must establish the need for such a measure.<br />

If the security so ordered is not provided, the court,<br />

according to the circumstances, may order that the heir forfeit


150 SUCCESSION<br />

the benefit of inventory or that he be deprived of the custody<br />

and administration of the property of the succession.<br />

The court may also make any appropriate order in<br />

deciding upon the motion.<br />

123 The effect of benefit of inventory is to give the heir the<br />

advantage of:<br />

1. not confounding his personal property with that of the<br />

succession, and retaining the right to demand payment<br />

of his claims against the succession;<br />

2. being held liable for the debts of the succession only out<br />

of the property he has received.<br />

Apart from the cases mentioned in Articles 143 and 144,<br />

the creditors of the deceased have no action against the<br />

personal property of the heir.<br />

124 The beneficiary heir administers the succession.<br />

In this respect, subject to this section, he has the rights<br />

and obligations of an administrator of the property of another<br />

entrusted with simple administration.<br />

He is accountable for his administration to the creditors<br />

and to his coheirs.<br />

125 The beneficiary heir realizes the property of the succession<br />

to the extent necessary to discharge the claims and the<br />

legacies.<br />

126 Before the beneficiary heir disposes of the property of<br />

the succession, he must make his quality known by a public<br />

notice, in accordance with Article 920a of the <strong>Code</strong> of <strong>Civil</strong><br />

Procedure.<br />

This notice is sent to those heirs and creditors of the<br />

succession whose existence is known to the beneficiary heir.


SUCCESSION 151<br />

127 The beneficiary heir may not make any payment to the<br />

creditors or legatees before the expiry of two months following<br />

the notice.<br />

128 Except in the cases mentioned in Article 103, a beneficiary<br />

heir who disposes of moveable property must proceed in<br />

the manner prescribed by Articles 921 and 922 of the <strong>Code</strong> of<br />

<strong>Civil</strong> Procedure.<br />

If he produces the property in kind, he is liable only for<br />

the depreciation or deterioration caused by his negligence.<br />

129 The beneficiary heir may not alienate immoveable<br />

property except in case of need or of obvious advantage.<br />

He must then proceed in the manner prescribed by<br />

Articles 922a to 922f of the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

130 A beneficiary heir of major age who has alienated<br />

property of the succession without complying with the<br />

requirements of Articles 126 to 129 forfeits the benefit of<br />

inventory.<br />

131 If after two months creditors or legatees have made<br />

themselves known to the heir, or there are any actions, seizures<br />

or contestations by or between the creditors and the legatees,<br />

the heir may make payments only in the order and in the<br />

manner prescribed by the court, unless there is agreement<br />

among all interested parties.<br />

132 If after two months no creditors or legatees have made<br />

themselves known to the heir, and no action, seizure or<br />

contestation has been judicially brought against him, the<br />

beneficiary heir may pay the creditors and legatees as they<br />

present themselves.<br />

133 Without prejudice to their action in damages against the<br />

heir, the creditors who have made themselves known and have


152 SUCCESSION<br />

been neglected in the settlement have recourse against the<br />

creditors and legatees paid to their detriment.<br />

Legatees who have been neglected under the same<br />

circumstances have recourse against the other legatees.<br />

134 Creditors and legatees who do not present themselves<br />

until after payments have been regularly made in accordance<br />

with Articles 126, 127, 131 to 133, have action only against<br />

the remainder of the succession.<br />

Nevertheless, creditors have recourse against any legatee<br />

who has been paid to their detriment, unless the legatee<br />

proves that they might have been paid by using diligence,<br />

without his being left answerable toward the other creditors<br />

who received in lieu of the claimant.<br />

135 A beneficiary heir who has an action to bring against the<br />

succession must give notice of this in writing to the Public<br />

Curator who, for this purpose, acts ex officio as curator to the<br />

succession.<br />

136 The beneficiary heir must impute the amount of the<br />

hypothecary claims to the sale price of immoveable property<br />

and remit it to the hypothecary creditors, unless the alienation<br />

is made subject to a hypothec with the consent of the creditor.<br />

137 The beneficiary heir, at any time and with the consent of<br />

all the interested parties, may render an amicable account<br />

without judicial formalities.<br />

138 If he administers for more than one year, the beneficiary<br />

heir must make his annual summary account available to the<br />

heirs and creditors who have not been paid.<br />

139 If the account is contested, the beneficiary heir renders a<br />

judicial account and gives any notice required by the court.


SUCCESSION 153<br />

The court discharges him of his administration according<br />

to the terms it deems appropriate in the circumstances.<br />

140 The beneficiary heir may renounce the benefit of inventory<br />

at any time, even tacitly, and become a pure and simple<br />

heir.<br />

141 In return for the discharge which he obtains from the<br />

court or from all interested persons the beneficiary heir may<br />

retain in kind that property of the succession which remains in<br />

his hands.<br />

142 If the discharge is based on payment by the beneficiary<br />

heir of all the debts, and he has not paid out all that he has<br />

received, he is not discharged with respect to any creditors<br />

who present themselves within six months of the discharge<br />

and give a satisfactory reason for not presenting themselves<br />

within the required period.<br />

After the period of six months, the creditors forfeit their<br />

rights against the beneficiary heir.<br />

143 Once the account has been audited, the beneficiary heir<br />

cannot be compelled to pay out of his private property, except<br />

to the extent of the amount which remains in his hands.<br />

144 If the beneficiary heir has been put in default to submit<br />

his final account and does not meet that obligation, he must<br />

pay out of his personal property.<br />

145 The form and content of the account which the beneficiary<br />

heir must render are governed by the <strong>Code</strong> of <strong>Civil</strong><br />

Procedure.<br />

146 Any interested party may have the beneficiary heir<br />

replaced by an administrator, if the interests of the creditors or<br />

of the legatees are in danger of being compromised by the<br />

beneficiary heir.


154 SUCCESSION<br />

The administrator is appointed, on motion, by the court<br />

of the place where the succession devolved.<br />

147 The beneficiary heir may also absolve himself of the<br />

duty of administering and winding up the succession by<br />

having an administrator appointed in the manner provided in<br />

chapter V of this Title.<br />

148 Unless the court orders to the contrary, the administrator<br />

appointed in the circumstances provided for in Articles<br />

146 and 147 has the same powers over the property of the<br />

succession as does the beneficiary heir, and is bound by the<br />

same obligations.<br />

He must render an account of his administration in the<br />

same manner as the beneficiary heir.<br />

Section V<br />

Vacant successions<br />

149 A succession is presumed vacant if all the known heirs<br />

have renounced it, or if no heir has claimed it after six months<br />

following the period during which the first heirs called may<br />

exercise their option.<br />

150 A declaration that a succession is vacant is obtained in<br />

the manner prescribed by the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

151 The Public Curator is ex officio curator to every succession<br />

presumed or declared vacant.<br />

152 The curatorship terminates when a regular heir who<br />

establishes his quality presents himself to take possession of<br />

the property.<br />

If no spouse, relative or known legatee accepts the<br />

succession, the Crown in right of the province may have the<br />

curatorship terminated and obtain possession.


SUCCESSION 155<br />

153 The curator to a vacant succession makes an inventory<br />

of the property of that succession; he manages the succession<br />

and, where applicable, winds it up; to this end, he has the<br />

same powers as a beneficiary heir.<br />

154 The provisions of this chapter governing the form of the<br />

inventory, the notices to be given and the accounts to be<br />

rendered apply, unless incompatible, to the curator of a vacant<br />

succession.<br />

CHAPTER V<br />

ADMINISTRATION OF SUCCESSIONS<br />

155 Upon motion by an heir, the court, if it deems it<br />

expedient, appoints a person to administer the succession.<br />

The petitioner may be so appointed.<br />

156 Any interested person may apply to have the administrator<br />

dismissed.<br />

157 The administrator acts as a simple administrator of the<br />

property of another, on behalf of the heirs, until partition.<br />

158 The administrator must make an inventory of the<br />

property of the succession in the same manner as the beneficiary<br />

heir.<br />

159 The inventory may be reviewed with the consent of<br />

interested persons, or contested in court upon application by<br />

any one of them.<br />

160 Any interested person may require the administrator to<br />

furnish security in the same manner as the beneficiary heir.<br />

161 When there are beneficiary heirs, the administrator<br />

must also comply with the rules governing benefit of<br />

inventory.


156 SUCCESSION<br />

CHAPTER VI<br />

UNDIVIDED OWNERSHIP AMONG HEIRS<br />

162 The provisions of this <strong>Code</strong> dealing with undivided<br />

ownership apply to undivided ownership among heirs which<br />

results from death, subject to the provisions of this chapter.<br />

163 Before partition, each heir may demand and receive<br />

payment of any divisible claim, in proportion to his share.<br />

164 If a dispute arises as to the determination of the majority<br />

in value of the joint owners, provided in Article 187 of the<br />

Book on Property, the share of the heirs in the undivided<br />

property is determined by the court by valuation as provided<br />

in Article 722 of the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

The same rule applies to the division of profits and losses<br />

among the undivided heirs, except for the account to be settled<br />

at the time of the final liquidation.<br />

165 If no administrator has been appointed under chapter V,<br />

any heir may be authorized, on motion, to collect from the<br />

debtors of the succession or from the holders or the depositaries<br />

of the funds of the succession, an amount to cover<br />

emergencies.<br />

In granting the authorization, the court may issue any<br />

order it deems appropriate and, in particular, may prescribe<br />

all useful measures regarding such funds.<br />

This authorization does not imply acceptance of the<br />

quality of heir.<br />

166 Notwithstanding opposition by one or more of the<br />

undivided heirs, undivided ownership resulting from death<br />

may, taking into account existing interests and particularly<br />

the possibility of livelihood which the family drew from the<br />

undivided property, be maintained, upon motion, with respect


SUCCESSION 157<br />

to a commercial, industrial, professional or other enterprise<br />

which was managed by the deceased, or with respect to a<br />

participation or securities in the enterprise.<br />

Undivided ownership resulting from death may also be<br />

maintained by the court with respect to all or part of any<br />

immoveable property which was used by the deceased and by<br />

his spouse as a dwelling or to the right to leased premises used<br />

as a dwelling, without prejudice to the provisions of this <strong>Code</strong><br />

governing the family residence and the spouse's right arising<br />

out of the succession.<br />

167 If the deceased leaves no minor children, only his spouse<br />

may apply for maintenance of the undivided ownership,<br />

provided that before his death, he was a co-owner of the<br />

enterprise, of a participation, or of securities in the enterprise<br />

or of the immoveable property, or was a co-lessee of the<br />

dwelling.<br />

If the deceased leaves one or more minor children, any<br />

heir may apply for maintenance of the undivided ownership.<br />

168 Maintenance of undivided ownership may not be ordered<br />

for a term of more than five years.<br />

It may be extended, in the case provided for in the first<br />

paragraph of the preceding article, until the death of the<br />

spouse and, in that provided for in the second paragraph of<br />

the same article, until the youngest child comes of age.<br />

CHAPTER VII<br />

LIABILITIES OF THE SUCCESSION AND<br />

SEPARATION OF PATRIMONIES<br />

169 An heir who comes alone to a succession must discharge<br />

all its debts and charges.


158 SUCCESSION<br />

170 When a succession devolves to several heirs, each of<br />

them is bound for the debts and charges in proportion only to<br />

his share, subject to the rules governing indivisible debts.<br />

171 The particular legatee is bound to the creditors only to<br />

the extent of the value of the property he has received, and<br />

only if the other property is insufficient.<br />

172 A pure and simple heir may be compelled to pay his<br />

share of the debts out of his own property.<br />

173 Nevertheless, if a pure and simple heir discovers new<br />

facts, or if creditors appear of whom he could not have been<br />

aware at the time of his acceptance, he may restrict his<br />

personal liability to the value of the property he has received,<br />

provided those events have the effect of substantially changing<br />

the extent of his obligation.<br />

The court, on motion, makes any order deemed appropriate,<br />

determining the limit and the terms and conditions of<br />

the heir's personal liability.<br />

In particular, it may liberate the heir completely,<br />

provided he abandons all that he has received from the<br />

succession.<br />

174 Particular legacies are executed only out of the net assets<br />

of the succession.<br />

Each heir is responsible only in proportion to his share.<br />

175 If the assets are not sufficient to ensure full execution of<br />

the particular legacies, all of them are reduced proportionately,<br />

regardless of their object, unless the testator has<br />

established an order of preference among them.<br />

176 The heirs are liable for the fiscal obligations of the<br />

deceased and of the succession in the same manner as for<br />

other debts.


SUCCESSION 159<br />

A particular legatee is also liable for the fiscal obligations<br />

relating to the property bequeathed or to the transmission<br />

of the property.<br />

However, if the law provides for an exemption or any<br />

other benefit in favour of an heir or a category of heirs, this is<br />

taken into account among the heirs, as are the rates applicable<br />

to each class of heir.<br />

177 In addition to the personal recourses which may be<br />

exercised against them, the heirs remain hypothecarily liable<br />

for any property affected with a hypothec and included in<br />

their share, saving their recourse against those personally<br />

liable for their share, according to the rules applicable to the<br />

warranty.<br />

178 The preceding articles do not prevent the creditors of the<br />

succession from suing for recovery of their claims out of all the<br />

property of the succession, as long as it remains undivided.<br />

179 Saving stipulation to the contrary in the deed of partition,<br />

an heir who has paid part of the debts and charges of the<br />

succession in excess of the share for which he was liable has<br />

recourse against his coheirs for the reimbursement of the<br />

excess.<br />

He may not exercise this recourse against the other<br />

persons entitled to the succession, even by virtue of subrogation<br />

in the rights of the paid creditor, except with regard to<br />

that part of the debt which each of those persons would have<br />

had to bear himself.<br />

Nevertheless, a beneficiary heir retains the right to<br />

demand payment of his claim, like any other creditor, after his<br />

share is deducted.<br />

180 If one of the coheirs becomes insolvent, his share of the<br />

hypothecary or other debt is divided among all the others<br />

rateably in proportion to their respective shares.


160 SUCCESSION<br />

181 The patrimony of the deceased is always separated from<br />

that of the heir without separation being applied for.<br />

It has effect in respect of the creditors of the deceased<br />

and of the succession and in respect of those of the heir.<br />

182 The property of the succession must be used to pay the<br />

creditors of the deceased and those legatees who inherited<br />

sums of money, in preference to any creditors of the heir.<br />

If the property is found to be insufficient, the heir's<br />

property is also used to pay the claims, but only after separate<br />

payment is made to the creditors of any heir whose claim came<br />

into existence before the succession devolved.<br />

183 The right to separation of patrimonies is exercised on<br />

the property as long as it is owned by the heir or on the price of<br />

the sale if it is still unpaid.<br />

CHAPTER VIII<br />

PARTITION AND RETURN<br />

Section I<br />

Partition<br />

184 If all the undivided heirs are present and in agreement,<br />

partition may be made in such form and by such act as the<br />

interested persons deem proper.<br />

185 The undivided heirs who proceed with partition by<br />

agreement make up the shares as they wish and decide<br />

together whether they will be attributed or drawn by lots,<br />

saving the rights of the surviving spouse under this Title.<br />

If the undivided heirs deem it necessary to sell all or part


SUCCESSION 161<br />

of the property to be divided, they also determine together the<br />

conditions of the sale.<br />

186 A person entitled merely to enjoy a part of the undivided<br />

property may participate only in a provisional partition.<br />

187 A consort common as to property may alone demand<br />

partition of the property devolved to him and which is to<br />

remain his private property; he may not, however, without<br />

the consent of his spouse, demand partition of property which<br />

has accrued to him and all or part of which may form part of<br />

the community.<br />

The joint undivided heirs of a spouse common as to<br />

property may not demand final partition of the property<br />

which forms part of the community without impleading the<br />

consorts.<br />

188 In the event of disagreement among the undivided heirs,<br />

partition can only take place under the conditions laid down<br />

in Articles 192 to 203 and in the forms required in the <strong>Code</strong> of<br />

<strong>Civil</strong> Procedure, saving their right to agree to observe only<br />

some of those forms and conditions.<br />

189 If several persons under tutorship have the same representative<br />

but their interests in the partition conflict, a separate<br />

representative must be appointed for each of them.<br />

If the representative of a person under tutorship is<br />

himself an undivided heir, an ad hoc representative must be<br />

appointed.<br />

190 Partition may include all, or part only, of the undivided<br />

property.<br />

Partition of an immoveable is deemed to have been<br />

carried out even if parts remain which are common and<br />

indivisible or which are intended to remain undivided.


162 SUCCESSION<br />

191 An heir who has abstracted or concealed property of a<br />

succession, particularly one who has knowingly and in bad<br />

faith failed to include the property in the inventory, may not<br />

claim any share of that property.<br />

This share benefits those who would have received it in<br />

his stead if he had renounced.<br />

192 The person appointed in the manner provided in the<br />

<strong>Code</strong> of <strong>Civil</strong> Procedure makes up the shares.<br />

193 Interested persons may agree to the allotment; in the<br />

absence of agreement, the shares are drawn by lot.<br />

Before the drawing, each copartitioner may raise objections<br />

as to the making up of the shares.<br />

194 In preference to any other heir, a spouse may make up<br />

his share so as to include the family residence, the household<br />

furniture, and any other property which is part of the mass to<br />

be apportioned, subject to Article 199.<br />

If the value of the property thus included exceeds the<br />

spouse's portion, he may retain the property, subject to<br />

payment of any balance.<br />

195 When the parts are equal, the number of shares made up<br />

is equal to the number of undivided heirs or partitioning roots.<br />

When the parts are unequal, the number of shares made<br />

up is that necessary to allow drawing by lots.<br />

196 The rules laid down for the division of the masses to be<br />

apportioned are also observed in the subdivision to be made<br />

among the partitioning roots.<br />

197 When the shares are made up and composed, immoveables<br />

should not be broken up, nor should enterprises of any<br />

kind be divided.


SUCCESSION 163<br />

Inasmuch as the breaking up of immoveables and the<br />

division of enterprises can be avoided, each share must, as far<br />

as possible, be made up wholly or partly of moveable or<br />

immoveable property, of rights or of claims of equivalent<br />

value.<br />

Any inequality in the value of the shares is compensated<br />

for by a balance.<br />

198 Each heir receives his share of the property of the<br />

succession in kind, and may demand that he be allotted one or<br />

several particular items or a share by way of preference.<br />

This demand must be taken into consideration in<br />

making up the shares, bearing in mind the right of the spouse,<br />

the objections made, the necessity of liquidity for paying the<br />

debts, and the convenience of proceeding in such a manner<br />

under the circumstances.<br />

In the event of contestation, the court decides on the<br />

application, on conditions deemed equitable.<br />

199 Notwithstanding any objections by one or more of his<br />

copartitioners, an heir may demand the attribution, by way of<br />

partition, of a commercial, industrial, professional or other<br />

enterprise in whose operation he was actively participating at<br />

the time of the death. If the enterprise was operated as a<br />

partnership or a corporation, he may demand that the<br />

participation or securities forming part of the succession be<br />

attributed under the same conditions.<br />

The same applies to any immoveable or part of an<br />

immoveable used as a dwelling by the heir or to the right to a<br />

lease of premises used as a dwelling by him.<br />

In the event of contestation, the court decides on the<br />

application, taking into account the interests present.<br />

When a balance must be paid, the court may determine


164 SUCCESSION<br />

the terms and conditions of payment, particularly the amount<br />

of the balance which may be paid in instalments, the amount<br />

and the due dates of the instalments and the interest rate.<br />

200 In the event of alienation, within three years following<br />

partition, of the property attributed under the preceding<br />

article, that part of the alienation price which exceeds the<br />

value estimated at the time of partition may be divided among<br />

the joint undivided heirs in the same way as if such an amount<br />

had existed at the time of partition.<br />

201 The property is assessed according to its condition and<br />

its value at the time of partition.<br />

If the parties cannot agree, the assessment is made by<br />

experts chosen by the parties or appointed by the court.<br />

202 If certain property cannot be conveniently apportioned<br />

or attributed, interested persons may decide together to sell it.<br />

In the absence of agreement, the sale may also be<br />

ordered by the court, upon motion.<br />

203 The conditions and form of such a sale are determined<br />

by the interested persons together or, failing this, by the court.<br />

If the disagreement among the interested persons<br />

concerns only the choice of the person to be entrusted with the<br />

sale, the court appoints him.<br />

204 In order that the partition not be made in fraud of their<br />

rights, the creditors of the succession, and those of a copartitioner,<br />

may object to its being undertaken in their absence,<br />

and may intervene at their own expense.<br />

205 After partition, each copartitioner must be given the<br />

titles relating to the property attributed to him.<br />

The titles to divided property remain with the person


SUCCESSION 165<br />

who has the greatest value in the property; that person must,<br />

whenever required, assist those of his copartitioners who have<br />

an interest in the property.<br />

Titles common to the entire inheritance are delivered to<br />

the person the heirs have chosen to act as depositary; he must<br />

assist his copartitioners whenever required.<br />

If the copartitioners disagree on the choice, it is made by<br />

the court.<br />

206 At partition, however, any undivided heir may apply for<br />

and obtain a copy of the titles to property in which he retains<br />

rights. The costs so incurred are shared.<br />

Section II<br />

Returns<br />

§ - 1 Return of gifts and legacies<br />

207 Each coheir must return to the mass only what he has<br />

received from the deceased, by gift or by will, under an express<br />

obligation to return.<br />

208 The part of a gift or a legacy made subject to return to<br />

the consort entitled to inherit, to his spouse, or to both, is not<br />

returnable except as regards the share to which he is entitled<br />

under the marriage agreements.<br />

209 An heir who renounces a succession is not obliged to<br />

return.<br />

210 Return is made only to the succession of the donor or of<br />

the testator.<br />

It is due only from one coheir to another.


166 SUCCESSION<br />

It is not due to particular legatees or to the creditors of<br />

the succession.<br />

211 Return is made by taking less.<br />

Any stipulation requiring the heir to make return in<br />

kind has no effect.<br />

212 However, an heir may return in kind the property given<br />

if he still owns it when partition takes place, unless, on his own<br />

initiative, he has affected it with a usufruct, a servitude, a<br />

hypothec or any other real charge.<br />

213 Coheirs to whom return by taking less is due deduct<br />

from the mass of the succession property equal in value to the<br />

amount of the return.<br />

As far as possible, pretakings are made in property of<br />

the same kind and quality as that which must be returned.<br />

If pretaking cannot be made in this manner, the heir<br />

returning may either pay the cash value of the property<br />

received or allow his coheirs to deduct other equivalent<br />

property from the mass.<br />

214 An heir who returns by taking less must return the value<br />

of the property given at the time of partition if the property<br />

still belongs to him.<br />

If the property has been alienated before partition, its<br />

value at the time of alienation must be returned.<br />

Bequeathed property, and that which remains in the<br />

succession, are assessed according to their condition and value<br />

at the time of partition.<br />

A donor or a testator may impose a different method of<br />

assessment.


SUCCESSION 167<br />

215 The returnable value defined in the preceding article is<br />

reduced by the appreciation of the property resulting from the<br />

expenditures or personal initiative of the person returning.<br />

It is also reduced by the amount of the expenditures<br />

necessary for preserving the property, even if they have not<br />

appreciated the value.<br />

Conversely, the returnable value is increased by the<br />

depreciation resulting from the actions of the person<br />

returning.<br />

216 Property given or bequeathed which has been destroyed<br />

by a fortuitous event and without fault on the part of the<br />

donee or of the legatee is not subject to return, except to the<br />

extent that it has given rise to compensation.<br />

217 If an heir chooses to make his return in kind, the<br />

settlement among coheirs is made taking account of Articles<br />

215and216.<br />

The heir is entitled to retain the property until he has<br />

been reimbursed the amounts he is owed.<br />

218 If the copartitioners agree that property affected by a<br />

hypothec or a charge is to be returned in kind, the return is<br />

made without prejudice to the hypothecary creditors, whose<br />

claim is charged to the person returning in the partition of the<br />

succession.<br />

219 The interest on the amount returnable, or the fruits of<br />

the property given or bequeathed, if the property is returned in<br />

kind, are also returnable from the time when the succession<br />

devolves.<br />

- 2 Return of debts<br />

220 An heir coming to partition must return to the mass to<br />

be partitioned the amounts he owes to the deceased, by


168 SUCCESSION<br />

whatever title, and all amounts he owes to his copartitioners<br />

resulting from indivision.<br />

The debts referred to in the first paragraph are subject to<br />

return even if they are not due when partition takes place.<br />

221 Return is not due if the deceased has stipulated, by deed<br />

inter vivos or by will, that the debt is to be released upon his<br />

death.<br />

222 If the amount in capital and interest of the debt to be<br />

returned exceeds the value of the hereditary share of the<br />

copartitioner bound to return, the copartitioner remains<br />

indebted for the remainder and must pay it according to the<br />

conditions attached to the debt.<br />

223 If a copartitioner bound to return debts has himself<br />

claims to make, even though they are not due at the time of<br />

partition, he must return only the balance of his debt.<br />

224 Return of debts is made by taking less.<br />

The deduction effected by coheirs may be set up against<br />

the personal creditors of the heir returning.<br />

225 Return must be made of the value of the debt in capital<br />

and interest at the time of partition.<br />

The returnable debt bears interest from the death if it<br />

precedes the death and from the date when it was contracted if<br />

it was contracted after the death.<br />

Section III<br />

Effects of partition<br />

§ - 1 The declaratory effect of partition<br />

226 Partition is declaratory of ownership.


SUCCESSION 169<br />

Each copartitioner is deemed to have inherited, alone<br />

and directly, all the property included in his share or which<br />

devolves to him through licitation or through any other kind<br />

of partial or complete partition; he is deemed to have owned<br />

it from the beginning of the undivided ownership, and never<br />

to have owned the other undivided property.<br />

Subject to the rules applicable to management of the<br />

affairs of another and to Article 218, acts performed by an<br />

undivided heir, or charges instituted by him respecting<br />

property which has not been attributed to him, cannot be set<br />

up against any other undivided heirs who have not consented<br />

to them.<br />

This article does not apply to the juridical relations<br />

between each coheir and his legal successors.<br />

227 Acts validly entered into during undivided ownership in<br />

conformity with chapter VI, and those to which all the<br />

undivided owners have given their consent, retain their effect,<br />

regardless of who, at partition, receives the property to which<br />

they apply.<br />

Each undivided owner is deemed to have performed the<br />

acts concerning the property which devolves to him.<br />

228 Article 226 applies to hereditary claims against third<br />

parties who take part in the partition, to any transfer of the<br />

claims made during the undivided ownership by one of the<br />

coheirs, and to any seizure of the claims made by creditors of<br />

one of the coheirs.<br />

These provisions do not prevent each heir from validly<br />

receiving payment for his hereditary share in the claim, until<br />

partition, or from invoking compensation for that share.<br />

The provisions of this <strong>Code</strong> regarding notification of<br />

sales of debts apply to those resulting from partition.


170 SUCCESSION<br />

§ - 2 Warranty of copartitioners<br />

229 Copartitioners are warrantors towards each other, only<br />

for the disturbances and evictions arising from a cause prior to<br />

the partition.<br />

Nevertheless, each copartitioner remains a warrantor<br />

for any eviction caused by his personal act.<br />

230 Insolvency of a debtor prior to partition gives rise to<br />

warranty in the same manner as an eviction.<br />

231 The warranty does not occur if the eviction in question<br />

has been excepted by a stipulation in the deed of partition; it<br />

terminates if the copartitioner suffers eviction through his own<br />

fault.<br />

232 Each copartitioner is personally bound, in proportion to<br />

his share, to indemnify his copartitioner for the loss which the<br />

eviction has caused him.<br />

The loss is assessed as of the day of the partition.<br />

If one of the copartitioners is insolvent, the share for<br />

which he is liable must be divided proportionately among the<br />

copartitioner who has suffered the eviction and all the solvent<br />

copartitioners.<br />

233 An action in warranty may only be instituted within<br />

three years following eviction or discovery of the disturbance.<br />

However, the action in warranty by reason of insolvency<br />

of a debtor of the succession may not be instituted if three<br />

years have elapsed since the partition.<br />

234 The privilege of copartitioners is abolished.<br />

The copartitioners may stipulate a hypothec to ensure<br />

the warranty.


SUCCESSION 171<br />

Section IV<br />

Nullity of partition<br />

235 Partition, even partial, may be annulled for the same<br />

reasons as a contract.<br />

236 Mere omission of undivided property does not give rise<br />

to an action in nullity, but only to a supplement to the deed of<br />

partition.<br />

237 Where the defect in a partition is not considered<br />

sufficient to entail nullity, there may be supplementary or<br />

corrective partition.<br />

238 In deciding whether there is lesion, the value of the<br />

property as at the time of partition must be considered.<br />

239 The defendant in an action in nullity of partition may,<br />

in all cases, have the action terminated and prevent a new<br />

partition, by offering and delivering to the plaintiff the<br />

supplement of his share of the succession, either in money or<br />

in kind.


SUCCESSION 173<br />

TITLE THREE<br />

TESTAMENTARY SUCCESSION<br />

CHAPTER I<br />

WILLS<br />

Section I<br />

General provisions<br />

240 Every person of major age may make provision, in a<br />

manner other than that provided by law, for the transfer upon<br />

his death of all or part of his property, subject to the provisions<br />

regarding hereditary reserve.<br />

241 A will may contain only provisions regarding its execution<br />

or the revocation of previous testamentary provisions.<br />

242 A will may always be revoked.<br />

The acceptance of a will made during the lifetime of the<br />

testator is without effect.<br />

No person, even in a marriage contract, except within<br />

the limits provided in Article 488 of the Book on Obligations,<br />

may renounce the right to make a will, to dispose of his<br />

property in contemplation of death or to revoke his testamentary<br />

dispositions.<br />

'.i<br />

243 No person may subject the validity of the will he intends<br />

to make to any formality, expression or sign not required by<br />

law, or to other derogatory clauses.<br />

244 No person may exclude his heir from his succession,<br />

unless the act excluding the heir is in the form of a will.


174 SUCCESSION<br />

245 A testamentary provision or a stipulation limiting the<br />

rights of a surviving spouse in the event of remarriage is<br />

without effect, subject to express provision of law.<br />

246 The capacity of a testator is required only at the time the<br />

will is signed.<br />

247 A person of major age under tutorship may not make a<br />

will.<br />

A person of major age under curatorship may make a<br />

will without assistance.<br />

248 A minor sixteen years old may dispose of his property by<br />

will in the same manner as a person of major age, provided he<br />

does so by means of an authentic will.<br />

249 Two or more persons may not make a will in the same<br />

instrument.<br />

250 A tutor or curator may not make a will on behalf of the<br />

person whom he represents or assists, either alone or jointly<br />

with that person.<br />

251 A person incapable of making a will may nevertheless<br />

receive by will.<br />

252 Legal persons and persons in mortmain may receive by<br />

will only such property as they may legally hold.<br />

253 A legatee must have the qualities required to inherit at<br />

the time the succession devolves, subject to the rules applicable<br />

to substitution and trusts.<br />

254 Representation occurs in testamentary succession in the<br />

same manner as in intestate succession, unless it is excluded by<br />

the testator either expressly or through the effect of the<br />

provisions of the will.


SUCCESSION 175<br />

Section II<br />

Forms of wills<br />

255 No person may make a will unless it is authentic,<br />

holograph or made in the presence of witnesses.<br />

256 The formalities governing wills must be observed on<br />

pain of absolute nullity.<br />

Nevertheless, if a will made in one form is null by reason<br />

of inobservance of a compulsory formality, the will is valid in<br />

another form, provided it meets the requirements of that other<br />

form.<br />

§ - 1 Authentic wills<br />

257 An authentic will is received in notarial form en minute.<br />

Except in the cases provided for in Article 266, the<br />

notary reads the will to the testator alone.<br />

The will contains a declaration by the testator to the<br />

effect that he has requested the notary to draw up his will, that<br />

the notary has read the will to him, and that the will contains<br />

the exact expression of his wishes.<br />

The declaration is then read by the notary to the testator<br />

in the presence of one witness, or, in the case governed by<br />

Article 266, of two witnesses and all sign the will in the<br />

presence of one another.<br />

258 Subject to Article 265 and to the Notarial Act, the<br />

formalities governing authentic wills are presumed to have<br />

been observed even when this is not expressly stated.<br />

259 Every witness required for an authentic will must be<br />

named and designated in the will.


176 SUCCESSION<br />

260 Any person of major age may witness an authentic will,<br />

except the spouse, or any employee of the notary who receives<br />

it.<br />

261 Consorts may not act as witnesses together.<br />

262 An authentic will may not be received by a notary<br />

related or allied to the testator either in the direct or in the<br />

collateral line up to and including the third degree.<br />

The witnesses may be related or allied to the testator, to<br />

the notary or to each other.<br />

263 The notary who receives a will may be appointed<br />

executor or trustee in the will, even if he is remunerated for<br />

this duty.<br />

264 When the testator knows neither French nor English, an<br />

authentic will may be drafted in a foreign language, provided<br />

the notary and the witness know that language.<br />

The notary records in the deed the testator's declaration<br />

that he knows neither French nor English, and the witness's<br />

declaration that he knows the foreign language used by the<br />

testator; he then draws up the will in the language of the<br />

testator, and immediately translates it into either French or<br />

English.<br />

The text in the foreign language makes proof until<br />

improbation; the translation makes proof of its conformity to<br />

the original until proof to the contrary.<br />

265 An authentic will is subject to additional formalities<br />

when the testator is blind, deaf, mute or unable to sign.<br />

The observance of these additional formalities and their<br />

cause are expressly mentioned in the instrument.


SUCCESSION 177<br />

266 In the cases governed by the preceding article, the will is<br />

received before a notary and two witnesses.<br />

The notary reads the will of the testator who is unable to<br />

sign, or is blind or mute, to this testator, in the presence of the<br />

two witnesses.<br />

The same applies to wills made by deaf mutes and deaf<br />

persons; deaf persons also read their own wills in the presence<br />

of the notary and of the witnesses.<br />

The verbal declaration of the testator to the effect that<br />

he is unable to sign compensates for the absence of a<br />

signature.<br />

267 Any person unable to express himself aloud who wishes<br />

to make an authentic will must convey his wishes to the notary<br />

in writing.<br />

§ - 2 Holograph wills<br />

268 A holograph will must be written entirely in the hand of<br />

the testator and signed by him.<br />

It is subject to no other form.<br />

269 A will written using a mechanical device is not valid as a<br />

holograph will.<br />

§ - 3 Wills made in the presence of witnesses<br />

270 A will made in the presence of witnesses is written by<br />

hand or using a mechanical device, by the testator or by a<br />

third party.<br />

In the presence of two witnesses, the testator then<br />

declares that the document he is presenting is his will; he<br />

need not divulge its contents; he signs at the end with his


178 SUCCESSION<br />

name or his mark or, if he has already signed, he acknowledges<br />

and confirms his signature.<br />

The witnesses then sign the will in the presence of the<br />

testator.<br />

When the will is written by a third party or using a<br />

mechanical device, the testator must also initial each page of<br />

the instrument which does not bear his signature.<br />

271 The witnesses are subject to the rules governing authentic<br />

wills.<br />

272 A person who does not know how to read, or who<br />

cannot read, may not make a will in the presence of witnesses.<br />

273 A person unable to speak but able to write may make a<br />

will before witnesses, provided he indicates by hand, in the<br />

presence of the witnesses, that the writing he is presenting is<br />

his will.<br />

Section III<br />

Probate of wills<br />

274 A holograph will or a will made before witnesses is<br />

probated, on application by any interested person, in the<br />

manner prescribed in the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

275 The heir need not be summoned to the probate of the<br />

will unless he is so ordered.<br />

276 A will which is not produced, but which can be proven<br />

in accordance with the Book on Evidence, may be probated<br />

upon motion, provided proof is made of the facts justifying<br />

this procedure and of the contents of the will.


SUCCESSION 179<br />

Section IV<br />

Revocation of wills<br />

277 A will may always be wholly or partly revoked.<br />

278 Revocation is express or tacit.<br />

279 Express revocation is made by a subsequent will explicitly<br />

declaring the change of intention.<br />

The revocatory clause may be general or specific.<br />

280 A will which revokes another may be made in a form<br />

different from that used for the will revoked.<br />

281 Destruction, tearing or erasure of a holograph will or of<br />

a will made before witnesses entails revocation, unless it is<br />

established that this was not done deliberately by the testator<br />

or on his instructions.<br />

The same applies to destruction or loss of a will, of<br />

which the testator was aware when he would have been able to<br />

replace the will, had he so desired.<br />

282 A subsequent testamentary disposition incompatible<br />

with a previous one entails tacit revocation.<br />

The revocation is only effective to the extent of the<br />

incompatibility.<br />

The revocation retains its full effect even if the new<br />

provision lapses.<br />

283 Revocation contained in a will which is null by reason of<br />

informality has no effect.<br />

284 Voluntary or forced alienation of a thing bequeathed,<br />

even when made under a resolutive condition or with the right


180 SUCCESSION<br />

of redemption, or by exchange, entails revocation with regard<br />

to everything that has been alienated, unless the testator has<br />

provided otherwise.<br />

Revocation subsists even if the thing alienated has been<br />

taken back into the patrimony of the testator, unless he<br />

appears to have intended the contrary.<br />

If the forced alienation of the thing bequeathed is<br />

annulled, it does not entail revocation.<br />

285 Revocation of an act which expressly or tacitly revokes a<br />

will does not revive a previous will unless the testator has<br />

made clear his intention to the contrary or unless such<br />

intention is the result of circumstances.<br />

CHAPTER II<br />

TESTAMENTARY DISPOSITIONS<br />

Section I<br />

Various kinds of legacies<br />

286 A testamentary disposition of property constitutes a<br />

universal legacy, or a legacy by general title or by particular<br />

title.<br />

287 A universal legacy enables one or more persons to<br />

receive an entire succession.<br />

288 A legacy by general title is one which confers the right to<br />

either:<br />

1. the ownership or the usufruct of an aliquot share of the<br />

succession or of all or an aliquot share of the immoveable<br />

or moveable property; or<br />

2. the usufruct of the entire succession.


SUCCESSION 181<br />

289 All other legacies are by particular title.<br />

290 The exception of particular things, whatever their<br />

number or value, does not destroy the character of a universal<br />

legacy or of a legacy by general title.<br />

291 The property of the deceased which has not been<br />

disposed of by him or respecting which the provisions of his<br />

will are without effect, remains in his intestate succession and<br />

devolves to his legal heirs.<br />

292 The provisions of any will under which an heir is<br />

appointed or a gift or a legacy is made, or which otherwise<br />

make known the intention of the testator, have effect according<br />

to the rules laid down in this chapter with regard to<br />

universal legacies, legacies by general title or legacies by<br />

particular title.<br />

Section II<br />

Lapse, resolution and nullity of legacies<br />

293 A legacy lapses when the legatee does not survive the<br />

testator, unless there is representation.<br />

294 A legacy lapses when the legatee repudiates it, is not<br />

able to accept it, or dies before the fulfilment of the suspensive<br />

condition accompanying it.<br />

295 A legacy also lapses if the thing bequeathed perishes<br />

totally during the lifetime of the testator or before the legacy<br />

made under a suspensive condition devolves.<br />

The legatee suffers the loss of the thing bequeathed if the<br />

loss occurs after the legacy devolves, saving his recourse<br />

against the person responsible for the loss.<br />

296 When a legacy charged with another legacy lapses from


182 SUCCESSION<br />

a cause depending on the legatee, the subsidiary legacy does<br />

not lapse.<br />

This legacy is then deemed to constitute a separate<br />

bequest and a charge upon the heir or legatee who receives<br />

whatever was bequeathed under the lapsed legacy.<br />

297 Unless there is representation, accretion takes place in<br />

favour of the particular legatees when a thing is bequeathed to<br />

them jointly and a lapse occurs with regard to one of them.<br />

298 A legacy is presumed to be made jointly if it is made by<br />

one bequest and if the testator has not allotted each colegatee's<br />

share of the thing bequeathed.<br />

Indication of equal aliquot shares in the partition of the<br />

thing bequeathed by a joint bequest does not preclude<br />

accretion.<br />

299 A legacy is also presumed to be made jointly when the<br />

entire thing is bequeathed by the same act to several persons<br />

separately.<br />

300 A condition that is impossible or is contrary to good<br />

morals, to the law or to public order is deemed not written.<br />

301 The same applies to any penal clause intended to<br />

prevent contestation of the validity of the will and any<br />

disinheritance which takes that form.<br />

302 A legacy made in an authentic will to the notary, to one<br />

of his relatives in the first degree, to his spouse or to the<br />

witnesses has no effect, but the other provisions of the will<br />

subsist.<br />

The same applies even when there are additional<br />

witnesses.<br />

A legacy in favour of an executor or a trustee who acts as


SUCCESSION 183<br />

a witness also has no effect with respect to the portion which<br />

exceeds his remuneration.<br />

303 In a will made before witnesses, a legacy made to the<br />

witnesses, their spouses or any of their relatives in the first<br />

degree has no effect, but the other provisions of the will<br />

subsist.<br />

304 When execution of a legacy is subject to a term, the<br />

legatee retains an acquired right which may be transferred to<br />

his heirs.<br />

305 When a legacy is made under a resolutive condition, the<br />

legatee obtains the benefit of it upon the death of the testator,<br />

subject to the effect granted to the fulfilment of the condition.<br />

306 A legacy is subject to resolution when the legatee is<br />

unworthy.<br />

The causes and effects of unworthiness are governed by<br />

Articles 7 and following.<br />

307 A legacy of a thing belonging to another has no effect<br />

unless it carries with it the obligation for the heir to obtain the<br />

thing bequeathed for the legatee.<br />

CHAPTER III<br />

THE EFFECT OF TESTAMENTARY DISPOSITIONS<br />

Section I<br />

General provisions<br />

308 The rules on acceptance and on repudiation of intestate<br />

succession apply to testamentary successions.


184 SUCCESSION<br />

309 A thing bequeathed is delivered, with its dependencies,<br />

in the condition in which it was when the testator died.<br />

310 Fruits and interest from the thing bequeathed accrue to<br />

the benefit of the legatee from the time of the testator's death.<br />

311 When immoveable property is bequeathed, any contiguous<br />

or annexed immoveable property acquired by the<br />

testator after the will is drawn up is presumed included in the<br />

legacy, provided the property forms a unit with the immoveable<br />

bequeathed.<br />

312 When a business concern is bequeathed, the same<br />

presumption applies to any operations acquired or created<br />

after the will is drawn up which, at the time the testator dies,<br />

make up an economic unit with the business concern<br />

bequeathed.<br />

313 Subject to Article 310, when securities are bequeathed,<br />

the legacy is presumed to include those rights attached to<br />

them which had not been exercised when the testator died.<br />

314 The legacy of an undivided thing is presumed to have as<br />

its object only the share the testator had in the thing when he<br />

died.<br />

Section II<br />

Payment of debts and of legacies<br />

315 The liability of a legatee for debts is described elsewhere<br />

in this <strong>Code</strong>, mainly in the Title on Intestate Succession and in<br />

the chapter on Usufruct.<br />

316 The legatee by general title of a usufruct is personally<br />

liable towards the creditor for the debts of the succession, even<br />

for the principal, in proportion to what he receives; he is also<br />

hypothecarily liable for anything which affects the property


SUCCESSION 185<br />

included in his share, like any other legatee by general title<br />

and subject to the same recourses.<br />

The contribution to the debts is determined between<br />

him and the bare owner according to the rules stated in Article<br />

139 of the Book on Property.<br />

317 The testator may change the manner and proportion in<br />

which the law holds his heirs and legatees liable for payment<br />

of the debts and legacies, without prejudice to the personal or<br />

hypothecary action of the creditors against the heirs and<br />

legatees, who have recourse against those upon whom the<br />

testator imposed the obligation.<br />

318 Particular legacies are paid by the intestate heirs, and<br />

the universal legatees or legatees by general title, each in the<br />

proportion for which he is liable, as in the contribution to<br />

debts; the legatees are entitled to demand separation of<br />

patrimonies.<br />

If the legacy is imposed on one particular intestate heir<br />

or legatee, the personal action of the particular legatee does<br />

not extend to the others.<br />

The testator may ensure the right to a legacy by a special<br />

hypothec on the property of the succession.<br />

319 When a legacy by particular title includes a universality<br />

of assets and liabilities, such as a succession or a business<br />

concern, the legatee of the universality is personally and solely<br />

liable for the debts connected with it, subject to the rights of<br />

the creditors against the heirs who have their recourse against<br />

the particular legatee.<br />

320 When the property of a succession is insufficient,<br />

particular legacies which have preference are paid first; the<br />

remainder is then divided rateably among the other legatees in<br />

proportion to the value of each legacy.


186 SUCCESSION<br />

The legatee of a certain and determinate object takes it,<br />

and is not compelled to contribute toward payment of the<br />

other legacies which have no preference over his own.<br />

321 Separation of patrimonies takes place in testamentary<br />

succession in the same manner as in intestate succession.<br />

To obtain reduction of any particular legacy, the<br />

creditor must have discussed the heir who is personally liable.<br />

The creditor exercises reduction against each particular<br />

legatee for only a share proportional to the value of his legacy,<br />

but the particular legatees may free themselves by surrendering<br />

the legacy or its value.<br />

322 Separation of patrimonies operates to the detriment of<br />

the creditors of the legatee whenever a particular legacy is<br />

reduced.<br />

323 If bequeathed property has been hypothecated, the heir<br />

liable for the debts according to the rules already laid down<br />

must pay the hypothecary debt on expiry of the term or obtain<br />

a release from the hypothec.<br />

324 A particular legatee who, in order to free the property<br />

bequeathed to him, pays a hypothecary debt for which he is<br />

not liable, has recourse against those who come to the<br />

succession, each for his share, with subrogation in the same<br />

manner as any other person acquiring by particular title.<br />

325 A usufruct established on a bequeathed thing is borne<br />

without recourse by the legatee of the bare ownership.<br />

The same holds true for servitudes which are borne by<br />

the legatee of the thing affected.<br />

326 If, however, the testator was not personally liable for the<br />

hypothec affecting at the same time the particular legacy and


SUCCESSION 187<br />

the property remaining in the succession, the benefit of<br />

division may be claimed reciprocally.<br />

327 A legacy to a creditor is not presumed to have been<br />

made as payment of his claim.<br />

CHAPTER IV<br />

TESTAMENTARY EXECUTION<br />

Section I<br />

Appointment of executors<br />

328 A testator may designate one or more persons to ensure<br />

the execution of his last wishes.<br />

He may provide for their successive replacement either<br />

by designating persons to replace them, or by empowering the<br />

original executors to replace themselves. He may also authorize<br />

them to designate additional executors.<br />

The testator may also entrust the court with the appointment<br />

or replacement of the executors.<br />

These persons have the quality of testamentary executors,<br />

regardless of how the testator may have designated them.<br />

329 If the executor designated by the testator has not<br />

accepted the office, or if for any reason he cannot be designated<br />

or replaced according to the provisions of the will, the<br />

court may appoint an executor, on motion by any interested<br />

person.<br />

330 If there is no executor, or if an executor has not been<br />

appointed or replaced in the manner in which this may be<br />

done, the execution of the will falls entirely upon the heir who<br />

receives the succession, subject to the following article.


188 SUCCESSION<br />

331 If there is no executor, any heir may apply to the court to<br />

have an administrator appointed under Article 155.<br />

Any interested person may also have an administrator<br />

appointed for property situated in Quebec which is part of a<br />

succession which devolved outside Quebec.<br />

Section II<br />

Capacity and acceptance of executors<br />

332 A minor and a person of major age under tutorship or<br />

curatorship may not act as an executor.<br />

333 Legal persons so empowered by law may act as<br />

executors.<br />

334 No person is bound to act as an executor.<br />

335 Acceptance may be express or tacit.<br />

336 The Title on Administration of the Property of Others<br />

applies to executors, saving inconsistency.<br />

An executor may not be dismissed, however, except by<br />

order of the court.<br />

337 If several executors have been appointed and one or<br />

more of them have accepted the office, those executors who<br />

have accepted may act alone.<br />

The same is true if several have accepted but only one or<br />

more survive or retain their office.<br />

338 If the court requires an executor to provide security, the<br />

costs are borne by the succession.<br />

The executor upon whom this obligation is imposed<br />

may renounce his office.


SUCCESSION 189<br />

339 If the testator himself has not so provided, the executor<br />

is entitled to equitable compensation, determined by agreement<br />

with the heirs or, in the absence of agreement, fixed by<br />

the court.<br />

When execution of a will falls under the professional<br />

competence of the person to whom it has been entrusted, the<br />

executor is entitled to the usual remuneration.<br />

340 When a legacy made to an executor has no other cause<br />

than his remuneration, it lapses if he does not accept the office.<br />

Section III<br />

Obligations of executors<br />

341 An executor has the obligation of administering the<br />

property of the succession in accordance with the instructions<br />

of the testator and the law.<br />

He executes the provisions of the will.<br />

He has the will probated, if applicable.<br />

If the validity of the will is contested, he may become a<br />

party to support it.<br />

He executes all other obligations imposed upon him by<br />

law as an administrator of the property of another.<br />

342 If, due to the absence of some of the executors, a<br />

majority cannot be obtained, those present may act alone,<br />

even before inventory, concerning the custody of property or<br />

acts requiring dispatch.<br />

343 Even when the testator or the heir claims to have<br />

exempted the executor from making inventory, the executor<br />

must make inventory in the same manner as a beneficiary heir.


190<br />

SUCCESSION<br />

The inventory, however, may be made either before a<br />

notary or before two witnesses.<br />

344 Any heir and any creditor may consult the inventory<br />

and obtain a copy of it at his own expense.<br />

345 Moreover, when there are beneficiary heirs, the executor<br />

must follow the rules concerning benefit of inventory.<br />

Section IV<br />

Powers of the executor<br />

346 Upon the death of the testator, the executor is seized of<br />

all the property of the succession for the purposes of executing<br />

the will; he exercises the powers of simple administration<br />

regarding the property.<br />

He may claim the property of the succession, even<br />

against the heirs.<br />

347 The Title on Administration of the Property of Others<br />

applies to the executor to the extent that it is not inconsistent<br />

with this chapter.<br />

348 However, until the inventory has been made, the executor<br />

has only the powers of a person entrusted with custody of<br />

the property of another.<br />

In addition, he may perform any acts requiring<br />

dispatch.<br />

349 The executor remains seized until the will is fully<br />

executed, but the seizin may not exceed two years unless an<br />

extension is agreed to by all the heirs or is granted by the court<br />

for cause.<br />

The testator may not extend the seizin beyond this<br />

period.


SUCCESSION 191<br />

350 The testator may restrict the seizin of the executor or<br />

modify his powers and obligations within the limits permitted<br />

by law.<br />

351 Upon motion by any interested person, the court,<br />

according to the circumstances, may vary the executor's seizin<br />

or his powers in any manner, under the conditions it determines,<br />

or it may terminate his seizin or his powers completely.<br />

352 The executor collects the claims, and pays the debts and<br />

the costs of administration.<br />

He discharges the particular legacies out of the property<br />

of the succession.<br />

Unless the testator has provided otherwise, the duties<br />

and taxes payable on the deceased person's property are<br />

divided among the heirs in accordance with Article 176.<br />

353 The executor partitions the property according to the<br />

rights of the interested persons.<br />

Before composing the shares, he hears any heirs who<br />

request to be heard. Articles 194 to 203 then govern the<br />

manner in which the shares will be composed, subject to the<br />

provisions of the will.<br />

CHAPTER V<br />

SUBSTITUTION<br />

Section I<br />

General provisions<br />

354 There is substitution when a donee or a legatee is<br />

obliged to remit what he receives, either upon his death or<br />

previously.


192 SUCCESSION<br />

355 Moveable property and immoveable property may be<br />

the object of a substitution.<br />

356 The institute is the person obliged to remit; the substitute<br />

is the person subsequently entitled to receive.<br />

When there are two degrees in the substitution, the<br />

substitute who receives under an obligation to remit becomes<br />

an institute with respect to the subsequent substitute.<br />

357 A substitution must be established in writing; failing<br />

this, the stipulation which obliges the institute to remit has no<br />

effect.<br />

358 A substitution may exist even though such words as<br />

"trust", "usufruct" or "prohibition against alienation" are<br />

used to express the right of the institute.<br />

In determining whether or not there is substitution,<br />

consideration is given to the entire tenor of the deed and the<br />

intent which it sufficiently expresses, rather than to the<br />

meaning of particular words.<br />

359 A substitute need not exist when a gift is made or a<br />

succession devolves.<br />

He need exist only when the substitution opens.<br />

360 The prohibition against making a will subject to no<br />

other condition or indication entails substitution in favour of<br />

the intestate heirs of the donee or legatee, with respect to<br />

property given or bequeathed which remains at the time of his<br />

death.<br />

361 A prohibition against alienation has no effect unless it<br />

can stand as a substitution.<br />

362 However, the gift or legacy of an immoveable affected<br />

by a right of usufruct, use or habitation may be accompanied


SUCCESSION 193<br />

by a prohibition against alienation without the consent of the<br />

beneficiary of the right affecting the immoveable.<br />

363 No substitution may extend to more than two degrees,<br />

exclusive of the institute.<br />

Any stipulation which extends a substitution to more<br />

than two degrees has no effect as regards the excess.<br />

364 Degree is defined by head and not by root.<br />

365 However, a transfer is not counted as a degree of<br />

substitution if it takes place between co-institutes when one of<br />

them dies, provided it is stipulated that his share passes to the<br />

surviving institutes, without prejudice to the rights acquired<br />

following the death of an institute; the exercise of these rights<br />

is suspended until the last institute dies.<br />

366 Saving incompatibility, the rules governing legacies<br />

apply to substitutions created by gift or by will.<br />

Representation, however, does not take effect with<br />

respect to the institute.<br />

367 Lapse with regard to the substitute benefits the institute.<br />

Lapse of a testamentary substitution with regard to the<br />

institute benefits the substitute.<br />

368 A granting donor may, until opening, revoke the substitution<br />

with respect to the substitute, as long as no acceptance<br />

has been made by or for the substitute.<br />

The substitute is presumed to have accepted when either<br />

of his parents is the institute.<br />

Revocation of the substitution never benefits the<br />

grantor.


194 SUCCESSION<br />

In the absence of any provision to the contrary, revocation<br />

benefits the cosubstitute, if there is one; if there is none, it<br />

benefits the institute.<br />

369 The grantor may reserve for himself the right to determine<br />

the share of each substitute.<br />

He may also confer this right upon the institute.<br />

370 If a donor reserves for himself the right to later substitute<br />

property given by him, even in a marriage contract, this<br />

right has no effect.<br />

371 The grantor may allow the institute to dispose gratuitously<br />

of the property of the substitution, or to alienate it<br />

without being obliged to replace it.<br />

In this case, the substitution has effect only with regard<br />

to the remainder.<br />

Section II<br />

Substitution before opening<br />

372 Before opening, the institute holds for himself as an<br />

owner, subject to his obligation to remit the property of the<br />

substitution to the substitutes.<br />

373 Acts performed by the institute are subject to the<br />

supervision of the Public Curator.<br />

374 Within two months after the gift or after the acceptance<br />

of a legacy, the institute, having notified the Public Curator<br />

and all interested persons, must make an inventory at his own<br />

expense of all the substituted property, unless it has already<br />

been identified in the deed setting up the substitution or in the<br />

general inventory of the succession.<br />

Failing this, the Public Curator, the substitutes or their


SUCCESSION 195<br />

legal representatives may make the inventory at the expense of<br />

the institute, provided they notify him and the other interested<br />

persons.<br />

Any provision to the contrary is without effect.<br />

375 Once a year, the institute must notify the substitutes and<br />

the Public Curator of any change in the inventory and of the<br />

use he has made of the substituted property.<br />

Any provision to the contrary is without effect.<br />

376 The institute must perform all acts necessary to maintain<br />

and preserve the property.<br />

He must pay all fees and expenses chargeable to revenue<br />

which are due before the opening, except for reimbursement in<br />

proportion to the duration of his right.<br />

377 The institute receives money due, gives discharge for it,<br />

and exercises all judicial recourses related to it.<br />

378 With respect to his right to exploit mines, quarries and<br />

trees on the land subject to the substitution, the institute is<br />

subject to the rules governing usufruct.<br />

379 The institute may lease, hypothecate or alienate by<br />

onerous title the moveable or immoveable property of the<br />

substitution.<br />

The lessee, creditor or acquirer has a definitive right<br />

which is not affected by the right of the substitutes at the<br />

opening of the substitution.<br />

Except in cases of fraud, the substitutes have recourse<br />

only against the institute.<br />

Any provision to the contrary is without effect.


196 SUCCESSION<br />

380 The institute must invest the proceeds of any alienation<br />

of substituted property, of capital paid to him, and of cash.<br />

381 In any alienation, use or replacement of substituted<br />

property, the institute must act with prudence and diligence,<br />

bearing in mind the eventual rights of the substitute.<br />

Any replacement made in conformity with Article 552<br />

of the Book on Property is presumed proper.<br />

382 Any alienation by gratuitous title of the property of the<br />

substitution by the institute is invalid unless the grantor<br />

allowed it.<br />

383 The institute must insure the immoveable property at<br />

his own expense against all ordinary risks, particularly fire and<br />

theft.<br />

The amount of insurance is substituted property.<br />

384 The institute is responsible for all damage caused to the<br />

substituted property, unless he can prove absence of fault on<br />

his part.<br />

385 If the institute fails to execute his obligations, is guilty of<br />

bad administration, or deteriorates, dissipates or wastes the<br />

substituted property, the judge, on motion by the Public<br />

Curator or by any interested person and depending on the<br />

gravity of the circumstances, may deprive the institute of the<br />

income, compel him to restore the capital or to furnish<br />

security, pronounce the forfeiture of his rights in favour of the<br />

substitutes or appoint a sequestrator.<br />

The substitute is also entitled to any conservatory<br />

recourse to ensure protection of his rights.<br />

386 Creditors of the institute may seize the rights conferred<br />

on the institute by the substitution, and have them sold by<br />

judicial sale.


SUCCESSION 197<br />

387 If substituted property is seized for debts of the institute,<br />

the substitutes may oppose the seizure.<br />

If there is no opposition, the sale is valid; the purchaser<br />

has a definitive title, and the substitutes may exercise recourse<br />

only against the institute or his heirs.<br />

388 Before the opening of the substitution, the substitute<br />

may dispose of or renounce his eventual right to the property<br />

substituted.<br />

Section III<br />

Substitution after opening<br />

389 Unless an earlier time has been set, the substitution<br />

opens upon the death of the institute.<br />

If the institute is a legal person, the substitution cannot<br />

open more than twenty-five years after the gift or after the<br />

succession devolves.<br />

Any provision setting a later date for the opening is<br />

without effect.<br />

390 Upon the opening of the substitution, the institute or his<br />

heirs render account and remit the property with its accessories.<br />

If they have collected the income earned since the<br />

opening, they hand it in unless the substitute has been put in<br />

default and has failed to assume his quality.<br />

391 If the substituted property is no longer in kind, the<br />

institute must hand in whatever has been acquired through<br />

replacement.<br />

If it is impossible to remit property because of the act of<br />

the institute, either he or his heirs must pay the value of the<br />

property on the day of the opening.


198 SUCCESSION<br />

392 The successors of the institute, as administrators of the<br />

property of another, must continue anything which is necessary<br />

as a result of acts performed by the institute, or anything<br />

which cannot be deferred without risk of damage.<br />

393 The substitute receives the property directly from the<br />

grantor.<br />

Upon the opening of the substitution, the substitute is<br />

seized of the ownership of the property like a legatee.<br />

394 Co-institutes are solidarily liable toward the substitute.<br />

395 If the institute has made improvements to the substituted<br />

property, his recourse against the substitute is subject to<br />

the rules applicable to possessors in good faith.<br />

396 If the institute has paid capital debts without having<br />

been charged to do so, he is entitled to reimbursement, with<br />

interest, from the opening.<br />

397 The expenses of judicial proceedings and of major<br />

repairs, and other extraordinary expenses that the institute<br />

assumes for the purposes of the substitution, are refunded, in<br />

whole or in part, to him or to his successors, according to what<br />

is found equitable at the time of the opening.<br />

398 The opening of a substitution revives the claims and<br />

debts which existed between the institute and the grantor, and<br />

terminates the confusion, within the person of the institute, of<br />

the qualities of creditor and debtor.<br />

However, the confusion subsists concerning any interest<br />

which has accrued until the opening.<br />

399 The institute or his successors, in exercising their rights,<br />

are entitled to separation of patrimonies against the substitute,<br />

and may retain the property until they are paid.


SUCCESSION 199<br />

400 The institute who is a minor or a person of major age<br />

under tutorship may not invoke his status in order to be<br />

relieved of the obligations imposed on him by law in favour of<br />

the substitutes, saving, however, his recourses against his tutor<br />

or any other representative.


BOOK FOUR<br />

PROPERTY


PROPERTY 203<br />

TITLE ONE<br />

NATURE AND KINDS OF PROPERTY<br />

1 Property consists of the personal and real rights that<br />

belong to a person.<br />

2 Real rights relate to things or to rights.<br />

CHAPTER I<br />

MOVEABLES AND IMMOVEABLES<br />

3 Property and things are moveable or immoveable.<br />

4 Property and things are moveable unless the law provides<br />

otherwise.<br />

5 Immoveable things are land, the buildings and other<br />

works incorporated therewith, and anything which is an<br />

integral part of such land, buildings or works.<br />

6 Plants and minerals are integral parts of the land as long<br />

as they are not separated or extracted from it.<br />

Nevertheless, harvests and fruits of plants are moveable<br />

even when not separated from the land.<br />

7 All things which are incorporated into an immoveable,<br />

regardless of who has effected the incorporation, are integral<br />

parts of the immoveable.<br />

The same applies to all things which are physically<br />

attached to an immoveable but which do not lose their<br />

individuality, without prejudice to the existing rights of third<br />

parties thereto.<br />

8 When a thing which forms an integral part of an<br />

immoveable is temporarily detached from it, such thing


204 PROPERTY<br />

remains immoveable as long as it is intended that it be put<br />

back.<br />

9 An immoveable right is a real right having as its object<br />

either an immoveable thing or an immoveable right and any<br />

action to exercise these rights or to obtain possession of an<br />

immoveable thing.<br />

10 Moveables used for the commercial, agricultural or<br />

industrial exploitation of an immoveable remain moveable.<br />

11 Rights established in a bearer instrument are deemed<br />

corporeal moveables.<br />

12 Energy which has been produced is deemed a corporeal<br />

moveable, whether its source is moveable or immoveable.<br />

CHAPTER II<br />

THINGS IN THEIR RELATION TO THOSE WHO<br />

HOLD RIGHTS TO THEM OR WHO POSSESS THEM<br />

13 Certain things cannot be owned; their use, which is<br />

common to all, is governed by law.<br />

14 Certain things are not the object of any rights although<br />

they may become so.<br />

15 Moveable things which have never belonged to any<br />

person or which have been voluntarily abandoned by their<br />

owner belong to the person who takes physical possession of<br />

them by occupation, subject to express provision of law.<br />

16 A thing which has been lost still belongs to its owner,<br />

subject to the rules of prescription and express provision of<br />

law.<br />

17 A treasure belongs to the person who finds it on his land.


PROPERTY 205<br />

A treasure found on land belonging to another person<br />

belongs half to the person who finds it and half to the owner of<br />

the land.<br />

A treasure is any hidden or buried thing, discovered by<br />

chance, which no person can prove that he owns.<br />

18 Immoveables which have no owner belong to the Crown<br />

in right of the Province.<br />

The rights of the Crown to vacant or irregular successions<br />

are defined in the Book on Succession.<br />

19 A person may hold, with respect to a thing, a right of<br />

ownership or a dismemberment of the right of ownership.<br />

Exercise in fact of any such right constitutes possession.


PROPERTY 207<br />

TITLE TWO<br />

POSSESSION<br />

CHAPTER I<br />

THE NATURE OF POSSESSION<br />

20 Possession is the exercise in fact of a real right, by<br />

oneself or by another, as holder of such right.<br />

Such intention is presumed. If it is shown to be lacking,<br />

there is detention.<br />

21 When one person has begun detention for another, he is<br />

presumed to exercise such detention in the same quality,<br />

unless interversion of title is proven.<br />

Proof can result only from unequivocal facts which<br />

contradict the right of the person on whose behalf the<br />

detention is effected.<br />

22 Possession cannot be based on any act which is merely<br />

facultative or of sufferance.<br />

23 If possession is to produce legal effects, it must be<br />

continuous, peaceful, public and unequivocal.<br />

24 The present possessor is presumed to have been in<br />

continuous possession from the time he assumed possession.<br />

25 Where possession is discontinuous, violent, clandestine<br />

or equivocal, it begins to produce its effects when the defect<br />

has ceased.<br />

Successors by any title do not suffer from such defects in<br />

the possession of previous holders, provided their own possession<br />

can produce juridical effects.


208 PROPERTY<br />

26 A thief may never invoke the effects of possession.<br />

This does not apply to the thief's successors by any title.<br />

27 A possessor in good faith is a person who, when his<br />

possession begins, is justified in believing himself the holder of<br />

the right he is exercising.<br />

His good faith ceases when his right is judicially<br />

contested.<br />

28 A possessor is presumed to be in good faith.<br />

CHAPTER II<br />

EFFECTS OF POSSESSION<br />

29 The possessor is presumed to be the holder of the right<br />

he is exercising.<br />

30 The possessor may avail himself of possessory actions,<br />

under the conditions provided by the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

31 Possession vests the possessor with the real right he is<br />

exercising, under the conditions determined in the Books on<br />

Prescription and on Publication of Rights.<br />

32 Improvements made by the possessor confer upon him<br />

the right to the recourses provided for in Articles 78, 79 and<br />

80.<br />

33 A possessor in good faith acquires the fruits of the thing<br />

and bears the cost of production.<br />

A possessor in bad faith owes such fruits as the thing<br />

should have yielded as of the day when his bad faith<br />

commenced.


PROPERTY 209<br />

TITLE THREE<br />

THE RIGHT OF OWNERSHIP<br />

CHAPTER I<br />

NATURE AND SCOPE OF THE RIGHT OF<br />

OWNERSHIP<br />

34 Ownership is the right to use, enjoy and dispose of<br />

things to the fullest, within the limits and under the conditions<br />

established by law.<br />

35 The owner of a thing owns all that it produces and bears<br />

the cost of production, subject to Article 33.<br />

36 The owner of a thing assumes the risks of its loss and<br />

deterioration.<br />

37 Ownership of the soil entails ownership of what is above<br />

and below the surface.<br />

The owner may effect any work, building, plantation<br />

and excavation that he thinks fit, upon or below the surface,<br />

subject to restrictions provided by law.<br />

38 However, ownership of the soil does not entail ownership<br />

of what is above and below the surface when there is a<br />

declaration of condominium, or the establishment of a right of<br />

superficies, or when the owner has otherwise disposed of his<br />

right to what is above and below the surface.<br />

39 The owner of land may prohibit anyone from making<br />

use of it and from using anything above or below the surface,<br />

subject to express provision of law.<br />

A person over whose land branches or roots extend from<br />

a neighbouring property may himself cut them as far as the


210 PROPERTY<br />

dividing line, or compel his neighbour to cut them, without<br />

prejudice to his other rights.<br />

40 The owner of land owns any springs found on it; he<br />

may use and dispose of them in the same manner as he may<br />

use and dispose of other parts of his land.<br />

41 Subject to any special laws, a riparian owner, for the use<br />

of his property, may make use of any watercourse which<br />

borders or crosses it.<br />

As the watercourse leaves his property, he must direct it<br />

to its regular course.<br />

He may not, by such use, prevent any other riparian<br />

owner from exercising the same right.<br />

42 Subject to any special laws, any person may travel on<br />

such watercourses, provided he gains legal access to them,<br />

causes no prejudice to the riparian owner, and does not set<br />

foot on the banks.<br />

CHAPTER II<br />

LIMITATIONS ON THE RIGHT OF OWNERSHIP<br />

Section I<br />

Expropriation<br />

43 No person may be compelled to give up his property,<br />

except by expropriation for public purposes and in consideration<br />

of an indemnity, in accordance with the law.


PROPERTY 211<br />

Section II<br />

Boundaries<br />

44 Any owner may compel his neighbour to determine the<br />

boundaries between their contiguous properties, under the<br />

conditions provided in the <strong>Code</strong> of <strong>Civil</strong> Procedure.<br />

Section HI<br />

Flowing water<br />

45 Water must be allowed to flow naturally from higher<br />

land to lower land.<br />

The owner of the lower land may not erect any dam to<br />

prevent this flow.<br />

The owner of the higher land may not do anything to<br />

aggravate the condition of the lower land.<br />

46 Roofs of buildings and other constructions must be built<br />

in such a manner as to prevent rain and snow falling on the<br />

neighbouring land.<br />

Section IV<br />

Fences<br />

47 Any owner may fence his land at his own expense,<br />

subject to express provision of law.<br />

He may also compel his neighbour to share the cost of<br />

building a common separation to divide their respective<br />

properties.


212 PROPERTY<br />

The court, taking account of usage and of the circumstances<br />

of the case, decides any dispute resulting from a<br />

disagreement between neighbouring property owners.<br />

48 A fence which separates contiguous lands is presumed<br />

to belong to both neighbours in co-ownership.<br />

49 A ditch which separates two contiguous lands is presumed<br />

to belong to both neighbours in co-ownership.<br />

However, when the embankment or the earth thrown<br />

out of a ditch is on one side of it only, the ditch is presumed to<br />

belong exclusively to the owner on whose side the earth is.<br />

Section V<br />

Common ownership<br />

50 The owner who builds a wall to support a building must<br />

erect the wall exclusively on his own land, although the<br />

foundation footings may encroach upon his neighbour's land.<br />

51 However, neighbouring owners may agree to build a<br />

wall on both sides of the dividing line and to share the<br />

expense.<br />

The wall is common, along all or part of its length.<br />

52 When a private wall immediately adjoins the dividing<br />

line, the neighbouring owner may render all or part of the wall<br />

common by paying the owner of it one-half of the value at the<br />

time of the part rendered common, and one-half of the value<br />

of the ground on which the wall is built.<br />

53 However, this option exists only in those cases where the<br />

wall supports a building; common ownership may then be<br />

acquired, regardless of the type of materials used to construct<br />

the wall or the buildings.


PROPERTY 213<br />

54 When buildings are supported by a wall between them,<br />

the wall is presumed common to the full height of the common<br />

portion.<br />

55 Each owner may build against a common wall and place<br />

joists or beams there.<br />

Neither owner may do so, however, without the consent<br />

of the other; if there is disagreement, he may apply by motion<br />

to the court to have determined the means necessary to ensure<br />

that the new construction does not prejudice the rights of the<br />

other owner.<br />

56 Each co-owner is responsible for maintaining, repairing<br />

and rebuilding a common wall, in proportion to his right.<br />

A co-owner who wishes to avoid this obligation may<br />

abandon his right of common ownership and renounce his<br />

right to make use of the wall.<br />

57 Each co-owner may increase the height of the common<br />

wall at his own expense.<br />

Both parties must first obtain an expert appraisal as to<br />

whether the wall can support the portion to be added. If the<br />

opinion is affirmative, the owner who is erecting the additional<br />

portion must pay the other an indemnity representing onesixth<br />

of the value of the additional portion.<br />

If the expert appraisal shows that the wall cannot<br />

support the portion to be added, the owner who wishes to<br />

increase the height must have it rebuilt entirely at his own<br />

expense, and any excess thickness must be on his side.<br />

In both cases, the person who has increased the height of<br />

part of a wall is the owner of that part of the wall, and he alone<br />

must bear the costs of maintaining, repairing and rebuilding<br />

it.


214 PROPERTY<br />

58 A neighbour who has not contributed to raising the<br />

height of the wall may acquire common ownership of the part<br />

raised by paying half of its then real value and, if necessary,<br />

the value of half of the ground used for the excess in thickness.<br />

He must in addition return the indemnity received<br />

under the preceding article.<br />

Section VI<br />

The right of view<br />

59 A co-owner of a common wall may not make any<br />

opening in such wall unless he has obtained a servitude of<br />

view from the other co-owner.<br />

60 The owner of a wall which is not common may, even if it<br />

is less than one metre ninety away from the dividing line,<br />

make lights in it, namely windows or other apertures made in<br />

such a way that they cannot be opened.<br />

These lights must not be transparent, but only<br />

translucent.<br />

There may also be oblique views in such a wall.<br />

61 No person may have any direct view, gallery, balcony or<br />

other projection, less than one metre ninety from the dividing<br />

line, over land adjacent to his.<br />

This prohibition does not apply to doors without glass,<br />

or to stoops, used for entering and leaving buildings.<br />

62 The prohibition contained in the preceding article does<br />

not apply to any owner who has provided views at a distance<br />

less than that prescribed, but is still unable to see because of<br />

the presence of a wall or a fence separating the two neighbouring<br />

properties.


PROPERTY 215<br />

If this obstacle disappears, the prohibition revives and is<br />

not prevented from applying by prescription.<br />

63 These distances are measured from the outside facing of<br />

the wall where the opening is made, and, if there is a balcony<br />

or other similar projection, from the outside line of the<br />

balcony or projection.<br />

Section VII<br />

The right of way<br />

64 The owner whose land is enclosed on all sides by that of<br />

others, or who has only insufficient access to the public road<br />

for the use of his land, may require one of his neighbours to<br />

provide him with the necessary passage-way, subject to an<br />

indemnity proportionate to the damage he may cause.<br />

65 The right of way is claimed from that neighbour whose<br />

property most naturally lends itself to that purpose.<br />

For this purpose, consideration is given to the state of<br />

the premises, the convenience to the enclosed land and the<br />

inconvenience the way causes to the affected land.<br />

66 If the land becomes enclosed as a result of a partition, a<br />

will, or a contract, the way may be claimed only over that part<br />

of the land which still provides access to the public road.<br />

The way is then provided without indemnity.<br />

67 The person who enjoys a right of way must build and<br />

maintain all works necessary to ensure that his right is<br />

exercised under conditions the least unfavourable to the land<br />

across which the way is situated.<br />

68 If the conditions provided for in Article 64 cease to exist,<br />

the right of way is extinguished.


216 PROPERTY<br />

The indemnity is not reimbursed; if the indemnity was<br />

in the form of annuities, no future payments are owed.<br />

Section VIII<br />

Access to another person's land<br />

69 The owner of land may prohibit any person access to it,<br />

unless the access is necessary to repair a wall or a construction<br />

erected on neighbouring land; in this case, a notice must first<br />

be given to the owner.<br />

The owner may then claim an indemnity if he suffers<br />

any damage as a result.<br />

70 Similarly, if, by the effect of a force of nature or a<br />

fortuitous event, any objects are carried, or animals stray, on<br />

to land belonging to another, the owner of the land must allow<br />

them to be searched for and removed.<br />

If he suffers damage by so doing, he may claim an<br />

indemnity.<br />

CHAPTER III<br />

ACQUISITION OF THE RIGHT OF OWNERSHIP<br />

71 The right of ownership is acquired by occupation, by<br />

accession, by succession, by contract, by prescription and by<br />

any other means provided by law.<br />

72 Ownership of a thing entails ownership of all that is<br />

united to or incorporated with the thing.<br />

This means of acquiring ownership is called accession.


PROPERTY 217<br />

Section I<br />

Accession of immoveables<br />

73 Accession of any moveable or immoveable thing to an<br />

immoveable may be voluntary or involuntary.<br />

In the first case, the accession is artificial and in the<br />

second, it is natural.<br />

§ - 1 Artificial accession<br />

74 All buildings, plantations and works on or beneath the<br />

surface of land are presumed to have been made by the owner<br />

of it and with materials belonging to him.<br />

Moreover, the buildings, plantations and works are<br />

presumed to belong to him.<br />

75 When the owner of the land erects buildings, plantations<br />

and works with materials which do not belong to him, he<br />

acquires the ownership of the materials by accession.<br />

The owner of the materials may neither remove them,<br />

nor be compelled to take them back.<br />

The owner of the land must refund the present value of<br />

the materials, and may also be liable for any damages.<br />

76 Ownership of the land entails ownership of all improvements<br />

made to it by a possessor.<br />

"Improvements" means any work that serves to increase<br />

the value of the property, especially buildings, plantations,<br />

new works and repairs.<br />

77 The owner of the land may not compel the possessor to<br />

remove the necessary improvements.


218 PROPERTY<br />

He may not compel the possessor in good faith to<br />

remove any useful improvements he has made.<br />

78 A possessor in good faith who is obliged to return a<br />

thing is entitled to reimbursement of the cost of the necessary<br />

improvements he has made, even if they no longer exist.<br />

If the improvements are useful, and still exist, he is<br />

entitled either to reimbursement of their cost or to an<br />

indemnity equal to the appreciation, as the owner decides.<br />

79 The possessor in bad faith who is obliged to return a<br />

thing is entitled to reimbursement of the cost of the necessary<br />

improvements he has made, even when they no longer exist,<br />

subject to compensation for fruits collected.<br />

80 The owner is not obliged to keep useful improvements<br />

made by a possessor in bad faith; he may compel the<br />

possessor to remove them at his own expense and to restore the<br />

premises to their original state.<br />

If the owner decides to keep the improvements, he must<br />

either repay their cost to the possessor or pay him an amount<br />

representing their present value; however, if the improvements<br />

cannot easily be removed by the possessor, the<br />

owner may retain them without paying him.<br />

81 When the possessor has done works on a property other<br />

than those listed in Article 76, the owner may preserve the<br />

works without indemnity, or compel the possessor to remove<br />

them and to restore the premises to their original state.<br />

82 The rules established respecting improvements made by<br />

a possessor in bad faith apply to a holder, unless the law or the<br />

act governing such detention provides otherwise.<br />

83 If useful improvements made by a possessor in good<br />

faith are so extensive and costly that the owner of the land<br />

cannot pay the indemnity provided for, the owner may request


PROPERTY 219<br />

the court to order the possessor to acquire the land and pay its<br />

estimated value.<br />

The court takes all the circumstances into consideration.<br />

84 Whenever an owner is obliged to pay an indemnity<br />

under the preceding provisions, he may not take back his<br />

immoveable until he has executed his obligation.<br />

§ - 2 Natural accession<br />

85 Alluvion becomes the property of the owner of the<br />

adjacent land, subject to express provision of law.<br />

"Alluvion" means deposits of earth and augmentations<br />

which gradually and imperceptibly collect on land adjacent to<br />

a watercourse.<br />

86 When ground is left dry by running water imperceptibly<br />

flowing away from one shore to the other, the owner of the<br />

uncovered shore gains the ground and the owner of the<br />

opposite shore may not reclaim anything for the land he has<br />

lost.<br />

87 If, by sudden force, a watercourse carries a large and<br />

recognizable portion of a riparian field towards a lower field or<br />

to the opposite bank, the owner of the portion carried away<br />

may reclaim it.<br />

He must, however, on pain of forfeiture, reclaim that<br />

portion within one year after the owner of the land to which it<br />

has been united takes possession of it.<br />

88 An island formed in the bed of a watercourse belongs to<br />

the owner of the bed.<br />

89 If, in forming a new branch, a watercourse cuts an<br />

adjacent field and thereby makes an island, the owner of the<br />

field retains the ownership of the island so made.


220 PROPERTY<br />

90 If a watercourse leaves its bed and forms a new one, the<br />

old bed belongs to the owners of the newly occupied land,<br />

each in proportion to the land which he has lost.<br />

Section II<br />

Accession of moveables<br />

91 When moveable things belonging to different owners<br />

have been intermingled and united in such a way that they can<br />

no longer be separated without causing deterioration, or<br />

without excessive labour and cost, the new thing belongs to<br />

the person who contributed the most towards its creation.<br />

The value of the work and of the moveable property<br />

intermingled or united must be taken into account.<br />

The same applies when a person has worked on or<br />

transformed any material which does not belong to him.<br />

92 The owner of the new thing must pay the value of either<br />

the material or the work supplied by the other owner.<br />

If it is impossible to determine who has contributed the<br />

most towards the creation of the new thing, the persons<br />

interested are co-owners in equal shares.<br />

Whenever a person has used materials belonging to<br />

other persons, without their consent, he may be ordered to pay<br />

damages.<br />

93 A person who is required to give back a moveable thing<br />

may retain it, without prejudice to his personal recourse, until<br />

the indemnity provided for in the preceding article has been<br />

paid.


PROPERTY 221<br />

TITLE FOUR<br />

DISMEMBERMENTS AND MODIFICATIONS<br />

OF THE RIGHT OF OWNERSHIP<br />

CHAPTER I<br />

USUFRUCT<br />

Section I<br />

General provisions<br />

94 Usufruct is the right to use and to enjoy the property of<br />

another person or a right held by another person, in the same<br />

manner as the owner or holder, subject to the obligation of<br />

preserving the substance.<br />

Usufruct may be established upon individual things,<br />

whether moveable or immoveable, upon rights, and upon<br />

universalities.<br />

95 Usufruct is established by contract, by will, by acquisitive<br />

prescription or by law.<br />

96 Usufruct is in essence temporary.<br />

97 Usufruct may be established in favour of one beneficiary<br />

or of several beneficiaries jointly or successively.<br />

98 The beneficiaries must exist when the usufruct opens.<br />

dies.<br />

The usufruct is extinguished when the last beneficiary


222 PROPERTY<br />

Section II<br />

Rights and obligations of the bare owner<br />

99 The sole obligation of the bare owner is to refrain from<br />

any act which might prevent the usufructuary from fully<br />

exercising his right.<br />

100 The usufructuary takes the thing in the state in which he<br />

finds it.<br />

He may not compel the bare owner to remit it in good<br />

condition nor can he compel him to make any repairs to it.<br />

101 The bare owner may dispose of his right.<br />

The alienation in no way affects the right of the usufructuary<br />

who continues to exercise his usufruct, unless he has<br />

formally renounced it.<br />

Section III<br />

Rights of the usufructuary<br />

102 The usufructuary has the possession, use and enjoyment<br />

of the thing or the right which is the object of the usufruct.<br />

103 The usufructuary is entitled to use the thing for the<br />

purposes for which it is intended.<br />

104 If a usufruct comprises things which cannot be used<br />

without being consumed, the usufructuary becomes the owner<br />

of them.<br />

Upon termination of the usufruct, the usufructuary must<br />

return similar things in the same quantity and of the same<br />

quality, unless the act allows him to execute his obligation in<br />

money.


PROPERTY 223<br />

105 The usufructuary may dispose, in the manner of a<br />

prudent administrator, of things which, although they are not<br />

immediately consumed, gradually deteriorate by reason of use<br />

and time.<br />

In such cases, at the end of the usufruct, he must restore<br />

the value the things had when he disposed of them.<br />

106 The usufructuary owns all fruits yielded by the object of<br />

his right.<br />

107 Natural fruits are those spontaneously produced by the<br />

soil, and those obtained by cultivation or working of land.<br />

Products and increase of animals are also natural fruits.<br />

108 <strong>Civil</strong> fruits are sums of money which a thing yields<br />

periodically.<br />

In particular, these include rentals, interest, arrears of<br />

annuities, dividends and other sums allotted or collected in<br />

similar circumstances.<br />

109 Extraordinary profits and payments which may derive<br />

from the right subject to the usufruct are not fruits.<br />

They are paid to the usufructuary who must account to<br />

the bare owner for them at the end of the usufruct.<br />

110 The usufructuary owns all natural fruits, including those<br />

which are attached to the thing at the beginning of the<br />

usufruct, as soon as such fruits are separated from the thing.<br />

He is not entitled to those which are still attached to the<br />

thing upon termination of the usufruct.<br />

Neither the owner nor the usufructuary is entitled to<br />

compensation for any work done or expenses incurred for the<br />

production of these fruits.


224 PROPERTY<br />

111 If, at the beginning of the usufruct or upon its termination,<br />

the thing is subject to a lease providing that the lessor<br />

and the lessee will share the fruits, the lessee retains his right<br />

to the fruits until his lease expires.<br />

112 <strong>Civil</strong> fruits are acquired day by day and belong to the<br />

usufructuary from the day when his right begins until that on<br />

which it terminates, even if they can be claimed earlier or later.<br />

113 If a debt subject to usufruct becomes payable during the<br />

usufruct, the price is paid to the usufructuary who gives<br />

discharge for it.<br />

The rules governing usufruct of consumable things<br />

apply in this case.<br />

114 The right to increase the capital subject to a usufruct,<br />

such as the right to subscribe by preference to shares, belongs<br />

to the bare owner and he alone may exercise it.<br />

However, the right of the usufructuary extends to the<br />

increase.<br />

If, on the other hand, the bare owner chooses to alienate<br />

his right, the capital is remitted to the usufructuary who is<br />

accountable for it at the end of the usufruct.<br />

115 Subject to the law or to the act constituting the usufruct,<br />

the usufructuary of stock, shares or interests subject to a<br />

usufruct is entitled to vote at meetings of shareholders or<br />

partners.<br />

However, the bare owner is entitled to vote on any<br />

proposed change to the capital structure of the enterprise.<br />

116 The usufructuary may not fell trees growing on the land<br />

subject to the usufruct.


PROPERTY 225<br />

He may dispose, however, of those which fall or which<br />

die accidentally.<br />

He must replace fruit trees unless most of them have<br />

been so destroyed.<br />

117 If the trees were used as a source of income before the<br />

usufruct opened, the usufructuary may continue to use them to<br />

his profit.<br />

He must do so in such a manner as not to endanger the<br />

regrowth of the forest.<br />

He must have the plan for his operation approved by<br />

experts. This approval must be ratified by a judge, upon<br />

motion.<br />

118 The usufructuary may not extract minerals from the<br />

land subject to the usufruct, except for the repair and<br />

maintenance of the land.<br />

If, however, the extraction of the minerals constituted a<br />

source of income for the owner, before the usufruct opened,<br />

the usufructuary may continue such work in the way in which<br />

it was begun.<br />

119 While the usufruct lasts, the usufructuary is not entitled<br />

to any treasure found on the land subject to the usufruct,<br />

unless he finds the treasure himself.<br />

120 If the usufruct bears on an immoveable, the usufructuary<br />

exercises all the rights created in favour of the<br />

immoveable.<br />

The usufructuary's right relates to all the accessories<br />

and everything added to the immoveable by accession during<br />

the usufruct.


226 PROPERTY<br />

121 The usufructuary may lease the things comprised in the<br />

usufruct or dispose of his right by gratuitous or onerous title.<br />

On termination of the usufruct, the lease granted by the<br />

usufructuary becomes subject to Articles 530, 531, 532 and<br />

548 of the Book on Obligations.<br />

122 Except when otherwise provided in the act constituting<br />

the usufruct, the usufructuary may not claim any indemnity<br />

for the improvements he has made, once the usufruct has<br />

expired.<br />

He may remove such improvements, however, provided<br />

he restores the thing to the state in which he received it.<br />

Section IV<br />

Obligations of the usufructuary<br />

123 Unless he is exempted therefrom, the usufructuary,<br />

having notified the owner, must cause to be drawn up, at his<br />

own expense, an inventory of the moveables and a statement<br />

of the immoveables subject to his right.<br />

A usufructuary who has not complied with this obligation<br />

may not require the owner to grant him the things<br />

subject to the usufruct; his delay, however, does not deprive<br />

him of the right to the fruits from the time the usufruct opens.<br />

124 The usufructuary must furnish security to ensure execution<br />

of his obligations; this does not apply to a vendor or to a<br />

donor who has reserved the usufruct.<br />

While the usufruct lasts, he must furnish additional<br />

security if his obligations increase.<br />

125 If the usufructuary does not furnish security within a<br />

reasonable period of time, the bare owner or the usufructuary


PROPERTY 227<br />

may have the moveables and immoveables subject to the<br />

usufruct sequestered.<br />

The sequestrator may sell perishable things subject to<br />

the usufruct, and invest the proceeds of the sale and any<br />

money subject to the usufruct.<br />

The fruits of these investments, and those derived from<br />

the sequestrator's administration of the moveables and<br />

immoveables subject to the usufruct, belong to the<br />

usufructuary.<br />

In every case, the fruits belong to the usufructuary from<br />

the moment the usufruct opens.<br />

126 If the moveable property under sequestration includes<br />

things likely to depreciate with use, or if the cost of custody or<br />

maintenance of the things would be disproportionate to their<br />

value, the bare owner may request the court to order them<br />

sold, and order that the proceeds be invested and the fruits<br />

collected in the manner provided in the preceding article.<br />

The usufructuary may, however, be allowed to have<br />

some of the moveables necessary for his personal use left him,<br />

provided he undertakes to produce them upon the extinction<br />

of the usufruct.<br />

127 The usufructuary must insure the thing against the usual<br />

risks, particularly fire and theft, and pay all the premiums for<br />

this insurance, until the usufruct expires.<br />

128 The proceeds of the insurance are paid to the usufructuary<br />

who gives a discharge to the insurer.<br />

If the thing has been damaged or partially destroyed,<br />

the usufructuary must use the proceeds of the insurance to<br />

repair or restore the thing.<br />

If the thing has been totally destroyed, the usufructuary


228 PROPERTY<br />

enjoys the proceeds of the insurance, provided he renders an<br />

account upon extinction of the usufruct.<br />

129 A usufructuary who is exempted from the obligation to<br />

insure the thing may contract insurance on his own account<br />

for the protection of his right.<br />

The proceeds of this insurance belong to the<br />

usufructuary.<br />

130 When the usufructuary is exempted from the obligation<br />

to insure the thing, the bare owner may also contract insurance<br />

on his own account for the protection of his rights.<br />

The proceeds of this insurance belong to him.<br />

131 The usufructuary must bear the usual costs of<br />

maintenance.<br />

costs.<br />

He is also responsible for minor repairs and bears the<br />

132 The usufructuary is not obliged to make major repairs<br />

himself, except when they become necessary through his act,<br />

particularly when no minor repairs have been made since the<br />

opening of the usufruct.<br />

133 Major repairs are those made to the beams and support<br />

walls; they also include complete replacement of roofs, dams,<br />

prop-walls, fences, and utility systems such as those for<br />

heating, electricity and plumbing.<br />

134 When major repairs are necessary for the preservation<br />

of the thing, the usufructuary must advise the bare owner.<br />

135 The bare owner is never obliged to make the major<br />

repairs.


PROPERTY 229<br />

If he decides to make those repairs, the usufructuary<br />

must endure any inconveniences resulting therefrom.<br />

If he refuses, the usufructuary may make them himself<br />

and be reimbursed the price, without interest, by the bare<br />

owner at the end of the usufruct.<br />

136 The usufructuary is responsible, in proportion to the<br />

duration of his usufruct, for all ordinary charges affecting the<br />

immoveable subject to his right, particularly land taxes and<br />

other annual dues or periodic contributions usually paid out of<br />

income.<br />

He is also liable for extraordinary charges, particularly<br />

special taxes for improvements and other similar contributions,<br />

when such charges or contributions are payable in<br />

periodic instalments over a number of years.<br />

137 The usufructuary by particular title of a thing is not<br />

personally responsible for the hypothecs which affect it.<br />

Similarly, when the usufruct is constituted by will, the<br />

usufructuary by particular title is not obliged to pay any part<br />

of the debts of the succession.<br />

If a usufructuary is compelled to pay any of these debts<br />

in order to preserve his right, he may require immediate<br />

reimbursement from the debtor, or from the bare owner upon<br />

extinction of the usufruct.<br />

138 When a usufruct is constituted by will, the usufructuary<br />

of the whole succession is responsible for full payment of any<br />

annuities or any support established by the testator, and for<br />

payment of the interest on all hereditary debts.<br />

The usufructuary of an aliquot share of a succession, or<br />

of all or an aliquot share of the moveable or immoveable<br />

property is responsible for these payments in proportion only<br />

to his share in the succession.


230 PROPERTY<br />

139 The usufructuary by general title must contribute<br />

towards the payment of any debts due, along with the bare<br />

owner, as hereinbelow provided.<br />

Each must pay the debt in proportion to his share in the<br />

succession following an estimate, if need be, of the property of<br />

the succession.<br />

The bare owner is responsible for the capital and the<br />

usufructuary for the interest.<br />

If the usufructuary wishes to advance the amount<br />

required to extinguish the debt, the capital is restored to him<br />

by the bare owner without interest, upon termination of the<br />

usufruct.<br />

If the usufructuary does not wish to make this advance,<br />

the bare owner may either pay the amount, in which case the<br />

usufructuary pays him interest on the amount as long as the<br />

usufruct lasts, or may cause a sufficient portion of the property<br />

subject to the usufruct to be sold.<br />

140 The usufructuary is responsible for the full cost of<br />

proceedings relating exclusively to the right of usufruct.<br />

If the proceedings affect the rights of both the owner and<br />

the usufructuary, and the usufruct continues after such<br />

proceedings, the preceding article applies.<br />

If the usufruct terminates as a result of the proceedings,<br />

the costs are shared equally by the usufructuary and the bare<br />

owner.<br />

141 If, during the usufruct, a third party encroaches on the<br />

thing of the bare owner or otherwise threatens his rights, the<br />

usufructuary must so notify the bare owner. If he fails to do so,<br />

the usufructuary is responsible for all damages which may<br />

result to the bare owner, as if he himself had caused them.


PROPERTY 231<br />

142 Upon extinction of the usufruct, the usufructuary must<br />

return to the bare owner all the things to which his usufruct<br />

applies, in the state in which they then are.<br />

The usufructuary is liable for any loss or deterioration,<br />

unless he proves that the loss or deterioration was not due to<br />

his fault or resulted from normal use of the thing.<br />

Section V<br />

Extinction of usufruct<br />

143 Usufruct is extinguished by the death of the usufructuary<br />

or, if the usufructuary is a legal person, by its dissolution.<br />

Nevertheless, a usufruct cannot be created in favour of a<br />

legal person for a term longer than twenty-five years. If a<br />

longer term has been stipulated, it is reduced to twenty-five<br />

years.<br />

144 A usufruct created for the benefit of several usufructuaries,<br />

either jointly or successively, is extinguished only upon<br />

the death of the last surviving usufructuary.<br />

In the case of a joint usufruct, if one usufructuary dies,<br />

the entire usufruct subsists for the benefit of the surviving<br />

usufructuaries.<br />

145 Subject to Article 143, usufruct is extinguished upon the<br />

expiry of the term for which it was granted.<br />

If a usufruct is granted until a third party reaches a<br />

certain fixed age, it continues until that date even if that<br />

person dies before reaching that age.<br />

146 Usufruct is also extinguished by confusion of the<br />

qualities of usufructuary and bare owner; and by application<br />

of the rules contained in the Book on Prescription.


232 PROPERTY<br />

147 Usufruct is extinguished by the total loss of the thing<br />

over which it was established.<br />

If part only of the thing subject to the usufruct perishes,<br />

the usufruct subsists upon the remainder.<br />

If an insurance contract is in force, Articles 127, 128,<br />

129 and 130 apply.<br />

148 If a usufruct is established solely upon a building, and<br />

that building is completely destroyed, the usufructuary has no<br />

right to the ground or to the materials.<br />

If the usufruct is established on land of which the<br />

destroyed building formed part, the usufructuary retains his<br />

right to the ground and to the materials.<br />

149 If a usufruct is established upon only one animal, and<br />

the animal perishes through no fault of the usufructuary, the<br />

usufructuary is not required to give another in return, nor to<br />

pay its value.<br />

150 If the usufruct is established upon a herd or a flock and<br />

the entire herd or flock perishes by reason of accident or<br />

disease, through no fault of the usufructuary, the usufructuary<br />

must account to the owner only for the skins or their value.<br />

If the herd or flock does not perish entirely, the usufructuary<br />

is obliged to replace only those animals which have<br />

perished, up to the number of the increase.<br />

151 The usufructuary who commits waste on the thing or<br />

allows it to depreciate for want of care, or in any other manner<br />

endangers the rights of the bare owner, may be declared to<br />

have forfeited his right.<br />

The creditors of the usufructuary may intervene in<br />

contestations to ensure preservation of their rights; they may<br />

offer to repair the waste and provide security for the future.


PROPERTY 233<br />

The court, according to the gravity of the circumstances,<br />

may order absolute extinction of the usufruct or the return of<br />

the object of the usufruct to the bare owner, subject to the<br />

owner's obligation to pay the usufructuary a fixed sum each<br />

year, until the usufruct is extinguished.<br />

CHAPTER II<br />

USE AND HABITATION<br />

152 The right of use is the right to enjoy a thing belonging to<br />

another, and to take the fruits of the thing, but only to the<br />

extent of the requirements of the user and of his family.<br />

When applied to a house, this right is called a right of<br />

habitation.<br />

153 The rules governing usufruct apply to the right of use<br />

and to the right of habitation, subject to express provision of<br />

law.<br />

154 Neither the right of use nor the right of habitation may<br />

be transferred or leased.<br />

155 The rights of the holder of a right of use or of habitation<br />

are determined by his own needs and those of his family.<br />

156 The holder of a right of habitation which applies to only<br />

part of a building may make use of any facilities intended for<br />

common use.<br />

157 The holder of the right of use or of habitation who takes<br />

all the fruits of the land or occupies the entire house is fully<br />

responsible for the costs of cultivation, for minor repairs and<br />

for payment of contributions, in the same manner as a<br />

usufructuary.


234 PROPERTY<br />

If he takes only some of the fruits, or occupies only part<br />

of the house, he contributes in proportion to what he enjoys.<br />

CHAPTER III<br />

REAL SERVITUDES<br />

Section I<br />

General provisions<br />

158 A real servitude is a charge imposed on one immoveable,<br />

called the servient immoveable, in favour of<br />

another, called the dominant immoveable, which belongs to a<br />

different owner.<br />

Under such charge, the servient owner must tolerate<br />

certain acts of usage by the dominant owner, or abstain from<br />

exercising certain rights inherent in ownership.<br />

159 When a servitude includes an obligation to do, the<br />

obligation can only exist as an accessory.<br />

160 A servitude is not affected by any transfer of ownership<br />

of the servient or of the dominant immoveable.<br />

It remains attached to the immoveable, through changes<br />

of ownership, subject to the provisions relating to the publication<br />

of real rights.<br />

161 A servitude is either continuous or discontinuous.<br />

A continuous servitude is one the exercise of which does<br />

not require actual intervention by its holder, such as a<br />

servitude of view, of water conduits, or of the prohibition<br />

against building.<br />

A discontinuous servitude is one the exercise of which<br />

requires actual intervention by its holder, such as a servitude<br />

of passage.


PROPERTY 235<br />

162 A servitude is either apparent or unapparent.<br />

An apparent servitude is one the existence of which is<br />

manifested by external works.<br />

An unapparent servitude is one the existence of which is<br />

not disclosed by any external sign.<br />

Section II<br />

Establishment of servitudes<br />

163 A servitude is established by contract, by will, by<br />

destination of owner, by acquisitive prescription, or by the<br />

effect of law.<br />

164 A servitude is constituted by destination of owner when<br />

the servitude is apparent and it has been proven in writing that<br />

the two immoveables currently divided previously belonged to<br />

the same owner who established or maintained, between the<br />

two immoveables, the physical arrangement which constitutes<br />

the servitude.<br />

165 Servitudes created by special law are governed by this<br />

chapter, except where there is inconsistency.<br />

Section III<br />

Rights and obligations of the dominant owner<br />

166 The extent of servitudes, and the rights and obligations<br />

which derive from them, are determined by the title which<br />

establishes them or, if the title is silent, by the rules which<br />

follow.<br />

167 Existence of a servitude entails existence of the means<br />

necessary for its exercise.


236 PROPERTY<br />

168 The dominant owner may take all measures and do all<br />

work necessary for the exercise and preservation of a<br />

servitude.<br />

These measures are taken and the work is done at his<br />

expense, unless the title establishing the servitude provides<br />

otherwise.<br />

169 Where a servient owner is charged by the title with<br />

doing the work necessary for the exercise and preservation of<br />

the servitude, he may free himself from such charge by<br />

relinquishing to the dominant owner all of the servient<br />

immoveable or any part of it sufficient for the exercise of the<br />

servitude.<br />

170 If the dominant immoveable is divided, the servitude<br />

remains due for each portion, without the condition of the<br />

servient immoveable being aggravated.<br />

Thus, as regards a right of way, all owners of lots formed<br />

by the division of a dominant immoveable must exercise such<br />

right over the same place.<br />

The same applies when a dominant immoveable<br />

becomes the object of a right of co-ownership.<br />

171 If a servient immoveable is divided, the division in no<br />

way affects the rights of the dominant owner.<br />

172 The dominant owner may only make use of the servitude<br />

in accordance with his title, but he may not make any<br />

change to the servient immoveable or to the dominant<br />

immoveable which aggravates the situation of the servient<br />

immoveable.


PROPERTY 237<br />

Section IV<br />

Rights and obligations of the servient owner<br />

173 A servient owner may do nothing which tends to<br />

diminish the exercise of a servitude or to render it less<br />

convenient.<br />

Thus, he cannot change the condition of the premises,<br />

nor transfer the exercise of the servitude to a place other than<br />

where it was originally assigned.<br />

However, provided the servient owner has an interest in<br />

it and does so at his own expense, he may require that the<br />

servitude be transferred to another place where its exercise will<br />

be as convenient to the dominant owner.<br />

174 The servient owner retains the use of his immoveable,<br />

and may perform there all acts of an owner, on the sole<br />

condition that he not hinder the exercise of the servitude.<br />

Section V<br />

Extinction of real servitudes<br />

175 A servitude is extinguished when the two immoveables<br />

become the property of the same person.<br />

176 A servitude is extinguished by express renunciation by<br />

the dominant owner, and by the expiry of the term for which<br />

the servitude is established.<br />

177 A servitude is extinguished by extinctive prescription, in<br />

conformity with the rules set forth in the Book on Prescription.<br />

178 As regards discontinuous servitudes, prescription begins<br />

to run on the day when the dominant owner ceases to perform<br />

acts in exercise of the servitude.


238 PROPERTY<br />

As regards continuous servitudes, prescription runs<br />

from the day when any act is done which prevents their<br />

exercise.<br />

179 The manner of exercising a servitude may be extinguished<br />

by prescription, like the servitude itself, and in the<br />

same way.<br />

180 Prescription runs even when a dominant immoveable or<br />

a servient immoveable undergoes a change of such a kind as to<br />

render exercise of the servitude impossible.<br />

CHAPTER IV<br />

INDIVISION<br />

Section I<br />

General provisions<br />

181 Property may belong to several persons in undivided<br />

ownership.<br />

This condition is called undivided ownership or coownership.<br />

182 The shares of co-owners are presumed to be equal.<br />

183 Each co-owner has the rights and obligations of an<br />

exclusive owner as regards his share, subject to the restrictions<br />

and conditions which follow.<br />

184 The co-owners jointly administer the property.<br />

Decisions concerning administration are made by a<br />

majority in value of the co-owners.<br />

Nevertheless, all the co-owners must be in agreement in


PROPERTY 239<br />

order to alienate the thing, to affect it with a real right, or to<br />

change its destination.<br />

185 The co-owners bear all administrative costs, taxes and<br />

other expenses, each in proportion to his share.<br />

186 The administration of undivided property may be<br />

vested in one or more administrators.<br />

187 The administrator is appointed by a majority in value of<br />

the undivided owners, saving unanimous agreement of the coowners<br />

requiring a larger majority.<br />

In the absence of such appointment, the administrator<br />

may be appointed by the court, for a legitimate reason, on<br />

motion by any undivided owner.<br />

188 The administrator may be dismissed by the undivided<br />

owners in the same way as he was appointed.<br />

Similarly, he may be dismissed by the court, for a<br />

legitimate reason, on motion by any undivided owner.<br />

189 The administrator may perform any act which a majority<br />

of the undivided owners may perform under Article 184,<br />

except the leasing of an immoveable or a business concern<br />

which was not rented at the time the administrator was<br />

appointed, or contracting any loan without the authorization<br />

of a majority in value of the undivided owners or leave of the<br />

court.<br />

With the unanimous consent of the undivided owners,<br />

he may alienate the undivided property, affect it with real<br />

rights or change its destination.<br />

190 Each undivided owner may make use of the undivided<br />

thing, provided he does not affect its destination nor the rights<br />

of the other co-owners.


240 PROPERTY<br />

191 The undivided owner may alienate or hypothecate his<br />

undivided share, and his creditors may seize it, saving the<br />

restrictions hereinafter mentioned.<br />

192 The undivided owner who intends to transfer by onerous<br />

title all or part of his share to a person other than another<br />

co-owner must, in writing, notify the other undivided owners<br />

and the administrator of the price and the conditions of the<br />

proposed transfer, and indicate the name and address of the<br />

prospective acquirer.<br />

Any undivided owner may advise the transferor, in<br />

writing, within one month following the notification, that he is<br />

exercising a right of pre-emption at the price and conditions of<br />

which he has been advised.<br />

193 If more than one undivided owner exercise the right of<br />

pre-emption, each of them may acquire a fraction of the share<br />

offered which is proportionate to his interest in relation to that<br />

of the others exercising the right.<br />

If the undivided owners fail to avail themselves of the<br />

right of pre-emption, the transferor may carry out the proposed<br />

transfer, provided he do so within six months of the<br />

notification.<br />

194 A transfer made contrary to the preceding articles, by an<br />

undivided owner to anyone other than another undivided<br />

owner, is null.<br />

The action in annulment may be exercised only by the<br />

undivided co-owners.<br />

195 The creditors, even the hypothecary creditors, of an<br />

undivided owner may not demand partition except by subrogatory<br />

action in cases where the debtor himself may make<br />

such application.<br />

He may, however, proceed to seizure and sale of his


PROPERTY 241<br />

debtor's undivided share, and, should the case arise, exercise<br />

the hypothecary recourses provided for by law.<br />

In the event of a sale by judicial authority, each<br />

undivided owner may avail himself of the right of preemption.<br />

196 Any transfer by an undivided owner, either to another<br />

undivided owner or to a third party, must be served upon the<br />

other undivided owners and the administrator or be accepted<br />

by them, in writing, in order to be set up against them.<br />

197 No person is compelled to remain in undivided<br />

ownership.<br />

Each co-owner may, at any time, apply for partition;<br />

this right is not subject to prescription.<br />

198 However, partition may be postponed by express agreement<br />

for a period not exceeding five years. This agreement is<br />

renewable.<br />

As regards immoveables, the agreement must be published<br />

in order to be set up against third parties.<br />

199 Any agreement or stipulation contrary to the two<br />

preceding articles is without effect.<br />

200 If a demand for partition is made at an inopportune<br />

time, the court may temporarily order entire or partial<br />

continuation of the undivided ownership and make any order<br />

it considers necessary.<br />

The judgment continuing undivided ownership in<br />

respect of immoveables must be published in order to be set up<br />

against third parties.<br />

201 Undivided ownership ends by partition in kind of the<br />

thing or by its alienation.


242 PROPERTY<br />

Any act the effect of which is to terminate undivided<br />

ownership is considered partition, even though the act is<br />

referred to as a sale, an exchange, a settlement or by any other<br />

name.<br />

In so far as they are applicable, the provisions of the<br />

Book on Succession relating to partition govern every<br />

partition.<br />

Section II<br />

Particular provisions relating to co-ownership of ships<br />

202 In matters of common interest relating to the equipping,<br />

management and manning of a ship, decisions are made by a<br />

majority in value of the co-owners, unless otherwise provided<br />

in the agreement.<br />

203 If opinion is equally divided as to whether or not a ship<br />

will be used, the opinion supporting its use prevails.<br />

204 In the cases provided in the two preceding articles, the<br />

owners who objected have the right to claim exemption from<br />

liability and to claim an indemnity according to the circumstances,<br />

at the discretion of the court.<br />

205 The sale of a ship by licitation may be ordered only if it<br />

is demanded by the owners holding at least one-half of the<br />

total interest in the ship, unless otherwise provided in the<br />

agreement.<br />

Section III<br />

Condominium<br />

§ - 1 General provisions<br />

206 This section governs every immoveable made subject to


PROPERTY 243<br />

it by the registration of a declaration of condominium<br />

whereby the ownership of the immoveable is apportioned<br />

between its owners in fractions, each comprising an exclusive<br />

portion and a share of the common portions.<br />

A person, even acting alone, may register a declaration<br />

of condominium and therein declare himself owner of each<br />

fraction.<br />

207 Each fraction constitutes a separate entity and may be<br />

the object of a total or partial alienation comprising in each<br />

case the share of common portions pertaining to the fraction<br />

or portion of a fraction alienated.<br />

208 Each co-owner has an undivided right of ownership in<br />

the common portions.<br />

His share in the common portions is equal to the value of<br />

the exclusive portion of his fraction in relation to the aggregate<br />

of the values of the exclusive portions.<br />

209 The common portions and the rights accessory to them<br />

cannot be the object, separately from the exclusive portions, of<br />

an action in partition or of a forced licitation.<br />

210 The common portions of the immoveable are those<br />

which are declared common by the declaration of condominium<br />

and, failing contrary provision in the declaration, those<br />

are common which are appropriated to the use of all the coowners,<br />

such as the soil, yards, parks and gardens, ways of<br />

access, basements, foundations and main walls of buildings,<br />

common equipment and apparatus, central heating system,<br />

piping and wiring, including that which crosses exclusive<br />

portions, the stairs and elevators, passages and corridors and<br />

parking and storage places.<br />

211 Partitions or walls separating exclusive portions from<br />

other exclusive or common portions and not included in the


244 PROPERTY<br />

foundations and main walls of buildings are presumed<br />

common between the premises which they separate.<br />

212 Each co-owner disposes of the exclusive portions included<br />

in his fraction.<br />

He uses and enjoys freely the exclusive portions and the<br />

common portions provided he does not impair the rights of<br />

the other co-owners or the destination of the immoveable.<br />

213 Any co-owner who is disturbed in his rights or in his<br />

enjoyment of the premises may act directly against the person<br />

causing the disturbance, provided he so informs the administrators<br />

in writing.<br />

214 Notwithstanding Article 297, a hypothec existing on the<br />

whole of an immoveable held in condominium is divided<br />

between each fraction according to the relative value of each<br />

of them, as determined in the declaration.<br />

215 Each of the co-owners is bound to contribute, in accordance<br />

with the provisions of the declaration or, failing this, in<br />

proportion to the relative value of his fraction established in<br />

the declaration, to all costs resulting from the condominium<br />

and the operation of the immoveable and particularly to the<br />

costs of conservation, maintenance and administration of the<br />

common portions and to the expenses caused by the operation<br />

of the common services.<br />

§ - 2 Declaration of condominium<br />

216 The declaration of condominium defines the destination<br />

of the immoveable and of its exclusive and common portions,<br />

of which it gives a detailed description.<br />

It determines the relative value of each fraction, having<br />

regard to the nature, area and situation of the exclusive<br />

portion which it comprises, but without taking its utilization<br />

into account.


PROPERTY 245<br />

Subject to the provisions of this section, it specifies the<br />

conditions of enjoyment of the common portions and utilization<br />

of the exclusive portions, and lays down the rules for<br />

the administration of the common portions.<br />

217 The declaration of condominium must be in the form of<br />

a notarial deed en minute; the same applies to the amendments<br />

made thereto.<br />

At the time of registration, the declaration must be<br />

signed by all the owners of the immoveable and be accompanied<br />

by the written consent of all holders of hypothecs<br />

registered against the immoveable.<br />

The registration of the declaration and of the amendments<br />

thereto is effected by deposit.<br />

218 The declaration and the amendments to it are binding<br />

upon the co-owners and their successors by general title.<br />

They are binding upon their successors and transferees<br />

by particular title from the date of the registration of their<br />

rights.<br />

219 The declaration may not impose any restriction upon<br />

the rights of the co-owners except those which would be<br />

justified by the destination, characteristics or situation of the<br />

immoveable.<br />

220 If justified by the destination, characteristics or situation<br />

of the immoveable, clauses prohibiting the alienation of a<br />

specific portion of a fraction, or providing that the carrying<br />

out of works which may affect the common portions shall be<br />

subject to approval by a general meeting, are permitted.<br />

The alienation of a specific portion of a fraction is null if<br />

the declaration, the cadastral plan and the book of reference<br />

have not previously been amended, with the necessary authorizations,<br />

so as to create a new fraction, describe it, assign a


246 PROPERTY<br />

separate cadastral number to it and determine its relative<br />

value.<br />

§ - 3 Administrators<br />

221 The declaration of condominium must provide for the<br />

appointment of one or more persons to act as administrators,<br />

and for the mode of their replacement in case of refusal to<br />

accept, death, or other cause of vacancy, as long as the<br />

immoveable is governed by this section.<br />

When it is impossible to replace them under the terms of<br />

the declaration, or when the replacement has not been made, a<br />

judge of the Superior Court, upon motion by any interested<br />

person, may appoint administrators to replace them, after<br />

notice to the co-owners.<br />

The declaration fixes the method of remuneration of the<br />

administrators.<br />

222 In the performance of their duties, the administrators<br />

are bound to act with prudence and diligence.<br />

223 The instrument of appointment, resignation or removal<br />

of an administrator is valid only from the registration of it in<br />

the office of the registration division in which the immoveable<br />

entrusted to his administration is situated.<br />

The registration is effected by deposit.<br />

However, want of registration of the instrument of<br />

appointment cannot be invoked against third parties in good<br />

faith.<br />

224 The administrators must render an account of their<br />

administration to the co-owners in a general meeting at least<br />

once a year.<br />

They must likewise render an account as often as the


PROPERTY 247<br />

declaration or their contract of engagement so requires and<br />

also whenever they cease to hold office.<br />

The powers of an administrator do not pass to his heirs<br />

or other successors, but the latter are bound to render an<br />

account of his administration.<br />

225 The administrators are not personally liable to third<br />

parties with whom they contract in the performance of their<br />

duties.<br />

226 Subject to the powers of a meeting of the co-owners, the<br />

administrators are entrusted with the conservation of the<br />

immoveable, the maintenance and administration of the<br />

common portions in accordance with their destination, and all<br />

measures in the common interest.<br />

227 If they have been duly authorized, acts of acquisition of<br />

common portions or other real rights are validly made by the<br />

administrators alone and are binding upon the co-owners as if<br />

they were parties thereto.<br />

The same applies to acts of alienation or in constitution<br />

of real rights.<br />

228 If they are duly authorized, the administrators as such<br />

may acquire or alienate exclusive portions by onerous or<br />

gratuitous title, and such portions do not thereby lose their<br />

characteristics.<br />

They have no vote at general meetings in virtue of<br />

exclusive portions acquired by them.<br />

229 The administrators have also the quality to act before<br />

the courts, as plaintiff or defendant, even against the coowners.<br />

230 The administrators are responsible, as such, as well to<br />

each co-owner as to third parties, for damage caused by failure


248 PROPERTY<br />

to maintain or by defects in the construction of the common<br />

portions, subject to all recursory actions.<br />

231 A judgment condemning the administrators to pay a<br />

sum of money is executory against each of the persons who<br />

were co-owners at the time when the cause of action arose, in<br />

the relative proportion of his fraction, according to the<br />

declaration.<br />

232 The administrators, if they deem it expedient, may take<br />

out insurance against fire or other risks, including liability<br />

towards third parties.<br />

They must do so to the extent provided in the<br />

declaration.<br />

§ - 4 Meetings of co-owners<br />

233 The co-owners must hold a general meeting at least once<br />

each year.<br />

234 The powers of a meeting of the co-owners and the<br />

procedure to be followed are determined by the declaration,<br />

subject to the provisions which follow.<br />

235 Each co-owner is entitled to a number of votes proportionate<br />

to the relative value of his fraction.<br />

236 Failing provision to the contrary in the declaration and<br />

subject to the following provisions, co-owners or their mandataries<br />

holding the majority of the votes constitute a quorum at<br />

meetings, and decisions are taken by the majority vote of the<br />

co-owners present or represented at the meeting.<br />

237 Decisions respecting the following matters can be taken<br />

only by the vote of at least one-half of the co-owners or their<br />

mandataries representing at least three-fourths of the votes:<br />

l.acts of acquisition of immoveables and of partial<br />

alienation of common portions;


PROPERTY 249<br />

2. amendment of the declaration or of the plan accompanying<br />

it;<br />

3. works involving the alteration, enlargement or improvement<br />

of common portions and the apportionment<br />

of the cost of such works;<br />

4. reconstruction or repair in case of loss;<br />

5. acts of alienation or acquisition of exclusive portions in<br />

the case contemplated by Article 228.<br />

238 Notwithstanding the preceding article, a meeting of coowners<br />

cannot impose upon a co-owner, contrary to the<br />

declaration, any change in the relative value of his fraction,<br />

the destination of the exclusive portions of his fraction or the<br />

use he may make of it.<br />

239 Except by unanimous vote, the co-owners cannot directly<br />

or indirectly change the destination of the immoveable.<br />

They cannot, except by unanimous vote, decide upon<br />

the alienation of common portions the retention of which is<br />

necessary to the destination of the immoveable.<br />

240 Failing provision to the contrary in the declaration:<br />

1. meetings shall be called by the administrators by a<br />

notice in writing mentioning the time, place and purpose<br />

of the meeting and sent by registered or certified<br />

letter to the co-owners at least fifteen days in advance;<br />

2. co-owners are presumed to have elected domicile at the<br />

immoveable held in condominium;<br />

3. a special meeting may be called by the co-owners<br />

holding one-fourth of the votes at meetings, or by their<br />

mandataries;<br />

4. co-owners in undivided ownership of a single fraction<br />

must be represented by a single mandatary, who may be<br />

one of their number;<br />

5. the appointment of a mandatary must be made in


250 PROPERTY<br />

writing, over the signature of the mandator or of his<br />

attorney authorized in writing; if the mandator is a<br />

corporation, it must be made over the signature of a<br />

person authorized for such purpose, in accordance with<br />

a resolution of the corporation.<br />

§ - 5 Sharing of costs<br />

241 The amount and due date of the sums necessary to meet<br />

the costs of maintenance of the immoveable and for all<br />

expenses are fixed by the administrators after consultation<br />

with a meeting of the co-owners.<br />

The administrators must notify each co-owner without<br />

delay of the amount he must pay.<br />

242 The declaration of condominium may constitute, on<br />

each fraction, a hypothec in favour of the administrators to<br />

secure payment of sums which are owed to them.<br />

The hypothec may be published, even though the<br />

amount of these sums is not mentioned in the declaration.<br />

However, the hypothec is extinguished with respect to a<br />

particular sum if, within three months after its exigibility, the<br />

administrators have not registered a notice in accordance with<br />

Articles 302 and 381.<br />

Any administrator has the quality to register the hypothec<br />

and to grant mainlevee of it.<br />

243 No co-owner may interfere with the carrying out of<br />

works required for the conservation of the immoveable<br />

decided upon by a meeting of the co-owners even within<br />

exclusive portions.<br />

Nevertheless a co-owner who suffers prejudice by the<br />

carrying out of works, either because of a temporary but<br />

serious disturbance of enjoyment or because of a permanent


PROPERTY 251<br />

diminution in the value of his fraction, is entitled to an<br />

indemnity payable by all the co-owners in proportion to their<br />

participation in the cost of the works.<br />

§ - 6 Miscellaneous<br />

244 In case of the total or partial destruction of a building, if<br />

the decision to rebuild is not made within ninety days, the<br />

rights of condominium are liquidated by the distribution<br />